Maurer School of Law: Indiana University
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Articles by Maurer Faculty
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2004
Brown v. Board of Education: Reexamination of the
Desegregation of Public Education from the
Perspective of the Post-Desegregation Era
Kevin D. Brown
Indiana University Maurer School of Law, [email protected]
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Brown, Kevin D., "Brown v. Board of Education: Reexamination of the Desegregation of Public Education from the Perspective of the
Post-Desegregation Era" (2004). Articles by Maurer Faculty. Paper 162.
http://www.repository.law.indiana.edu/facpub/162
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BROWN V BOARD OFEDUCATION"REEXAMINATION
OF THE DESEGREGATION OF PUBLIC EDUCATION
FROM THE PERSPECTIVE OF THE POSTDESEGREGATION ERA
Kevin D. Brown
UPREME Court opinions like Brown v. Board of Education' reveal their
consequences and yield their secrets only with the passage of time and the
development of American society The Supreme Court candidly recognized this
reality seventeen years after that opinion. "Nothing in our national experience prior
to 1955 prepared anyone for dealing with changes and adjustments of the magnitude
and complexity encountered since then."' Fifty years have now elapsed since the
Supreme Court rendered its historic opinion. The passage of that time allows us to
put into perspective a reexamination of the opinion that launched American society
into the Desegregation Era and became the catalyst for astonishing changes not only
in public education but also in race and ethnic relations throughout American
society With the Golden Anniversary of Brown upon us, we can now reflect on
that decision and the desegregation of public schools that it generated.
As the twenty-first century unfolds, it is clear that American public education has
moved into the Post-Desegregation Era. The assimilation vision forged during the
turbulent 1950s and 1960s in the aftermath of the Supreme Court's decision in
Brown-with its emphasis on racial balancing-has run its course. Over the past
seventeen years, a number of school desegregation decrees originating in the 1960s,
1970s, and 1980s have terminated. In addition, a number of lower federal courts
have recently struck down the use of racial classifications to foster integrated
student bodies.' Nothing demonstrates more cogently the end of the Desegregation
Era of public education than federal courts, which had encouraged the use of race
and ethnicity to foster integration of public schools, finding desegregation plans as
violations of the very provision of the Constitution that use to require them.
The impact of these changes can be seen in increasing rates of racial and ethnic
segregation in the public schools. The percentage of African-American school
children attending majority white schools has decreased from its peak of 37.1% in
the 1980-81 school year to 31.2% in 1996-97 to the current 28.4% in 2000. The
percentage of African-Americans in schools that are 90% or more minority has also
* Charles Whistler Professor of Law, Indiana University School of Law-Bloomington, B.S.
1978, Indiana University- J.D. 1982, Yale University. The author would like to thank Vivek Boray,
Sylvia Biers, Carmen Brun, Robyn Carr, Scott Timberman, and Daniel Trammel for the helpful
research on this article.
1. 347 U.S. 483 (1954) (Brown 1).
2.
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 13 (1971).
3. See, e.g., Eisenberg v. Montgomery County Pub. Sch., 197 F.3d 123, 125, 127 (4th Cir.
1999), cert. denied, 529 U.S. 1019 (2000); Tuttle v. Arlington County Sch. Bd., 195 F.3d 698, 700,
704 (4th Cir. 1999), cert. dismissed, 529 U.S. 1050 (2000); Wessmann v. Gittens, 160 F.3d 790,
793-94, 800 (lst Cir. 1998).
UNIVERSITY OF TOLEDO LAW REVIEW
[Vol. 35
been increasing. This percentage has gone from its lowest figure of 32.5% in the
1986-87 school year to 35% in 1996-97 to 37 4% in 2000. 4 Latmos actually
experience higher rates of segregation than blacks. For Latmos, segregation has
been increasing since the 1968-69 school year. At that time, 54.8% were in
majority minority schools and 23.1% were in schools that were at least 90%
minority The percentage of Latinos currently in predominately minority schools
is 76% and the percent in schools that are over 90% minority is 37%.5
This reexamination of Brown is made even more timely due to what Justice
Scalia called the Supreme Court's "split double header" in the summer of 2003 in
the University of Michigan affirmative action cases. In Grutter v Bollinger,6 the
Supreme Court upheld the affirmative action plan adopted by the University of
Michigan Law School. Grutterheld that racial classifications could be used in an
individualized admissions process as a means to pursue a critical mass of minority
students from groups with a history of discrimination that would not be represented
in significant numbers without such considerations. Justice O'Connor's opinion for
the Court in Grutter noted that the benefits of enrolling a critical mass of
underrepresented minority students are substantial.7
[Tihe Law School's admissions policy promotes "cross-racial understanding," helps to
break down racial stereotypes, and "enables [students] to better understand persons of
different races." These benefits are "important and laudable," because "classroom
discussion is livelier, more spirited and simply more enlightening and interesting" when
the students have "the greatest possible variety of backgrounds.' 's
Thus, a majority of the justices on the Supreme Court for the first time recognized
as a fundamental constitutional principle that the different perspectives presented
in education, especially those of students from groups with a history of
discrimination, are so valuable that their inclusion amounts to a compelling state
interest. In Gratz v Bollinger,9 however, the Supreme Court struck down the plan
adopted by the University of Michigan's College of Literature, Science and Arts.
The Court concluded that this plan was not narrowly tailored because it did not
provide for enough individualized consideration that must be the core of a raceconscious admissions policy Thus, on one hand, the Court stressed that
interpretations of constitutional rights derived from the Equal Protection Clause are
firmly based on the recognition that government should treat people as individuals,
not as members of racial or ethnic groups. On the other hand, the Supreme Court
recognized that there is tremendous educational value flowing from diverse points
4. Erica Frankenberg et al., A MultiracialSociety with SegregatedSchools: Are We Losing the
Dream? 31, 33 fig. 8 (Jan. 2003), available at http://www.civilrightsproject.harvard.edu/research
reseg03/AreWeLosingtheDream.pdf.
5. Id.
6. 539 U.S. 306 (2003).
7. Id. at 333.
8. Id. But O'Connor also notes: "The Law School does not premise its need for critical mass
on 'any belief that minority students always (or even consistently) express some characteristic minority
viewpoint on any issue."' Id. at 335.
9. 539 U.S. 244 (2003).
Summer 2004]
REEXAMINATION OF DESEGREGATION
of view on important social phenomena. In other words, interpretations of the
Equal Protection Clause are based on a point of view centered around respect for
individuality
Even though this perspective is decisive for determining
constitutional rights, it is not the only educationally valid understanding of a given
social phenomenon, including racial phenomena.
This article reexamines the Supreme Court's opinion in Brown v. Board of
Education and the desegregation of public schools that it spawned, but it will do so
with an awareness that public education has moved into a Post-Desegregation Era.
The Post-Desegregation Awareness takes into account the lessons that have been
learned about race, racial issues, and racial conflicts over the past fifty years. When
it comes to reexamining the Supreme Court's opinion in Brown v. Board of
Educationwith a Post-Desegregation Awareness, it must be acknowledged initially
that the opinion and the desegregation of public schools it brought about do not
provide only one objective meaning, but multiple meanings. How to comprehend
the effect of Brown v. BoardofEducation will largely be a function of the implicit
values and beliefs upon which the comprehension is based.
The central objective of the article-and thus the primary objective of the
reexamination of Brown v. Board of Education and the desegregation of public
education it made possible from the perspective of the Post-Desegregation
Awareness-is to demonstrate that the search for the one correct perception of any
given racial issue is misguided from the very beginning. Simply put, Americans
conceive of racial and ethnic phenomena in radically and fundamentally different
ways. What Abraham Lincoln said almost one hundred and fifty years ago about
liberty could be paraphrased to apply to our discussions today about the Supreme
Court's opinion in Brown v Board of Education or other racial issues. We all
declare for the Court's decision in Brown v. Boardof Education;but in discussing
the same decision we do not all mean the same thing.'0 Fifty years of desegregation
has revealed that racial and ethnic phenomena are comprehended against a sub
silentio background of a larger set of ideas about race, ethnicity, and the place in
American society for various minority groups. There are not as many different sets
of ideas used to comprehend racial phenomena as there are individual perceivers,
but a limited number of sets of background ideas about race which are used to
comprehend all sorts of racial phenomena and discuss various racial issues
including the Court's decision in Brown and the desegregation of public education.
Not only will there not be one valid interpretation of Brown v Board ofEducation
and the desegregation of American society it helped to bring about, but this basic
inability to develop one valid interpretation exists for all racial phenomena. There
can be no final end to the discussions about racial issues in American society that
does not take into account the existence of multiple perspectives or points of view
Despite the demographic changes in American society over the past fifty years,
this article will focus primarily upon interpreting Brown with a view to its impact
on the African-American community There are a number of reasons for this
10. Lincoln actually stated: "We all declare for liberty; but in using the same word we do not all
mean the same thing." Abraham Lincoln, Speech at Sanitary Fair, Maryland (Apr. 18, 1864),
reprintedin T)-s FIERY TRIAL. THE SPEECHES AND WRITINGSOF ABRAHAM LINCOLN 196 (William E.
Gienapp ed., 2002).
UNIVERSITY OF TOLEDO LAWREVIEW
[Vol. 35
limitation. At the time that the Court rendered its decision in Brown, AfricanAmericans were presumed to be the primary beneficiaries of the Court's opinion.
In addition, African-Americans have been the paradigmatic group in which so many
of American society's perceptions and treatments of other minorities has been
modeled upon. When dealing with the interests of other racial and ethnic minority
groups, the issue is often how similar to or different from African-Americans is a
particular minority group.' Finally and most importantly, one of the significant
realizations of the Post-Desegregation Awareness is that diverse racial/ethnic
groups perceive their situation in American society from different points of view
centered around that group's particular historical experiences. There are numerous
racial/ethnic groups in the United States. All of the broadly recognized racial or
ethnic groups in America-African-Americans, Asian-Americans, non-Hispanic
whites, Hispanic/Latino-Americans or Native Americans-can be further
subdivided. For example, Asian descendants in America are not a monolithic
group. The experiences of Chinese in America, Hawaiians in America, South
Asians in America, Japanese in America, Koreans in America, Vietnamese in
America and so on are very different. The same is true of the experiences of groups
in America that speak Spanish. The experience of Mexicans in America, Puerto
Ricans in America, Cubans in America, Panamanians in America, Dominicans in
America, Hondurans in America, Nicaraguans in America, Salvadoreans in America
and so on are different. While discussing the interpretation of Brown v. Board of
Education for blacks will yield insights for other racial/ethnic groups, it is not a
substitute.
Such a detailed treatment of the meaning of Brown v. Board of
Education for so many diverse racial/ethnic groups is, however, beyond the scope
of this article.
11. See, e.g., Dred Scott v. Sandford, 60 U.S. 393 (1857) (noting Chief Justice Taney's opinion
drew a distinction between the situation with Native Americans on the one hand and descendants of
Africa on the other). See also Gong Lum v. Rice, 275 U.S. 78 (1927). This was the Court's other
major education opinion of the segregation era. Martha Lum, a nine-year-old girl, was denied
admission into the local school for whites because of her Chinese ancestry. When the Supreme Court
of Mississippi heard this case, it directed its attention towards the proper construction of a provision
in the state's constitution which provided that "[s]eparate schools shall be maintained for the children
of the white and colored races." Rice v. Gong Lum, 104 So. 105, 105 (Miss. 1925). The Mississippi
Supreme Court concluded that this provision had divided educable children into those of pure white
or Caucasian race and those of colored races of brown, yellow, and black. Therefore, Martha Lum
could not insist on being classified as white. Id. at 107 Since the Legislature was not compelled to
provide separate schools for each of the colored races, all were given the benefit of a unified colored
school. Id. The Mississippi Supreme Court, therefore, denied Martha Lum admission to the white
school. Id. at 110. The Supreme Court noted that the ability of the state to segregate had been decided
many times. Gong Lum, 275 U.S. at 86. Though the issue had generally arisen in the establishment
of separate schools between white and black pupils, the Court did not think that the question was any
different between white and yellow pupils. Id. at 87 Accordingly, the Court upheld the decision to
prevent Martha Lur from being admitted to the white school.
In School DistrictNo. I v. Keyes, the Supreme Court discussed Latinos and determined that they
should be treated like blacks. 498 U.S. 1082 (1991). See also its discussion in the recent gender case
about how women were treated like Blacks. This may have also been in the early gender case. See
also Lyndon B. Johnson, Running Against the Twelfth Man ofHistory, N.Y TiMEs, Dec. 26, 1972,
at L33 ("When I say 'black' I also mean 'brown' and 'yellow' and 'red' and all otherpeople who suffer
discrimination because of their color.
Summer 2004]
REEXAMINATION OF DESEGREGATION
Section I discusses how American society and the role and condition of AfricanAmericans has changed over the past fifty years. Race is currently less of a factor
in limiting the opportunities of African-Americans than at any other time in this
country's collective past. Despite the recent success of so many individual AfricanAmericans, however, as a group blacks continue to lag far behind non-Hispanic
whites in virtually all aggregate measures related to social welfare.
Section II will revisit the Supreme Court's opinion in Brown v. Board of
Education to discuss the justifications provided by the Court for its decision to
strike down segregation statutes applied to public education. It will also examine
some of the other effects on public education of the Court's decision. Chief Justice
Warren's unanimous opinion for the Court in Brown v. BoardofEducationjustified
the decision to strike down segregation based on the psychological harm segregation
inflicted upon African-Americans. Segregation was viewed as damaging the hearts
and minds of black children in ways unlikely to ever be undone. Desegregation
involved more than desegregating students, it also impacted on staff, administrators
and teachers. Striking down segregation statutes led to the need to consolidate
black and white schools. African-American educators were often the ones who
were sacrificed in the process of consolidation and integration. In addition, the
Court's opinion in Brown set off an educational reform movement outside of the
legal system. Educational reforms incorporated many of the assumptions about
African-Americans that formed the basis of the Brown opinion. Thus, educational
reforms of the 1960s and 1970s were dominated by a "cultural deprivation
paradigm."
Despite the Court's expressed rationale for striking down segregation in public
schools, commentators, judges, and scholars have long provided many different
interpretations of Brown. Some have argued that Brown should be understood as
a decision embracing an anti-subordination principle, others have argued that Brown
should be understood as a decision that declared the simple proposition that it is
wrong for government to treat people as members of racial and ethnic groups
instead of as individuals. Still other commentators, particularly Professor Derrick
Bell, have asserted that Brown should be understood as a utilitarian opinion seeking
to advance the collective interest of American society He views desegregation as
particularly helpful in assisting America in its struggle against the Soviet Union
during the Cold War.
Section III expands on the implications behind Warren's opinion and these three
other interpretations of Brown. Comprehension of any particular racial
phenomenon is not done in isolation, but it is always done against a sub silentio
background of a much larger set of ideas about race and ethnicity This larger set
of ideas structures and limits the perception of a given racial phenomenon and thus
the discussion of a given racial issue. These various sub silentio backgrounds could
be called diverse perspectives or points of view This article, however, will refer
to these larger diverse sets of ideas used to view given racial phenomenon as the
following: "discourses," "patterns of understanding," "systems of meaning," or
"cognitive frameworks." The Post-Desegregation Awareness is a conscious
awareness that there are always a limited set of alternative and contradictory
discourses in which to perceive any racial or ethnic phenomenon and then to discuss
any given racial or ethnic issue. These patterns of understanding do not provide a
UNIVERSITY OF TOLEDO LAW REVIEW
[Vol. 35
definitive resolution of a given racial conflict. Rather, they structure and limit the
perception of and thus discussions about a given racial issue. Section III discusses
four different discourses for comprehending racial phenomena and discussing racial
issues: Traditional Americanism, African-American Centralism, Colorblind
Individualism, and American Collectivism.
Section IV then interprets the Supreme Court's decision in Brown and the
desegregation of public schools that it spawned within the conceptual boundaries
of the four different cognitive frameworks from section III. In so doing, it provides
four different understandings of Brown that reflect its meaning against the
background of these larger sets of ideas about race in American society
The Post-Desegregation Awareness does not attempt to determine the one correct
meaning or interpretation of an important racial phenomenon, like Brown v. Board
of Education. Rather, it anticipates that there are always a number of valid
discourses in which racial phenomena will be conceptualized and understood.
These discourses are based upon certain foundational beliefs which must first be
accepted as valid. Once the foundational belief is accepted, the discourse derived
from it structures and limits the perception of a given racial phenomenon. While
the given discourse does not provide a definitive solution for a given racial issue,
it does dictate the type of arguments that can be advanced in support of or in
opposition to a solution to a given racial conflict.
What the Post-Desegregation Awareness tries to do is to reveal how these limited
number of discourses, which we use over and over to comprehend racial phenomena
and discuss racial issues, structures and circumscribes the perception of such
phenomena and the discussion of such racial issues. When they are so revealed and
understood, then we come to know that many of our disagreements about the
meaning of racial phenomena, the type of arguments that are considered persuasive
in discussing various racial issues and resolutions to racial conflicts are actually
embedded in fundamentally different assumptions which generate alternative
systems of meaning for comprehending a given racial phenomenon. It is in this way
that, as Justice O'Connor noted in her opinion in Grutter,diversity in the classroom
can produce discussions that are more enlightening and interesting.
I.
THE CHANGING ROLE AND CONDITION OF AFRICAN-AMERICANS SINCE THE
COURT'S DECISION IN BROWN V BOARD OF EDUCATION
At the time the Supreme Court delivered its opinion in Brown v. Board of
Education, conditions were very different for African-Americans. People of
African descent were called Negroes, or colored out of respect, and were called
coon, darkie, and even black as an insult.
In 1954, most Negroes in the South had been disenfranchised for the entire
twentieth century Segregation and conscious racial discrimination were not only
the explicit law of the land but standard American business, educational, political,
and social practice. To discriminate based on race in merchandising stores, eating
establishments, places of entertainment, and hotels and motels was generally
accepted as a fact of life. Negroes seldom occupied positions in American
businesses and corporations above the most menial levels. Even lower level
management positions were, for the most part, unobtainable. In 1954, only a
Summer 2004]
REEXAMINATION OF DESEGREGATION
handful ofNegroes attended the prestigious colleges and universities ofthis country
and almost none taught there. A colored man had not been elected mayor of a major
U.S. city in the twentieth century There were only four Negroes serving in
Congress, none of whom had been elected to Congress from any of the eleven states
that made up the former Confederacy since 1900. In 1954, many places in the
country maintained separate water fountains, waiting rooms, transportation
facilities, rest rooms, schools, hospitals, and cemeteries for whites and coloreds.
But America has now lived with the Court's opinion in Brown for fifty years.
Many of the people who were called "Negroes" as a term of respect in 1954 would
be offended to be called a "Negro" today To call such a person "Black" is not an
insult but a sign of respect. And in most circles, the term used is "AfricanAmerican," a term no one considered using in 1954.
Conscious racial discrimination is illegal in merchandising stores, eating
establishments, places of entertainment, and hotel and motels. African-Americans
Robert Johnson and Oprah Winfrey are on the Forbes list of the wealthiest
Americans. 2 African-Americans such as Richard Parsons of AOL Time Warner
and Stanley O'Neal of Merrill Lynch have run, and currently run, some of
America's most powerful corporations. Blacks like Tiger Woods, Michael Jordan,
and LeBron James are among the highest paid marketing personalities in American
history African-Americans not only attend prestigious colleges and universities,3
but they are well-respected members of the faculty and administration at almost all
of America's elite educational institutions. In January 1999, there were over 9,000
African-American elected officials, including 451 mayors of major U.S. cities. 4
Even though there are no blacks in the upper house of Congress, there are thirtyseven blacks serving in the House of Representatives. 5 President George W Bush
appointed five African-Americans to powerful posts in his administration: Rod
Paige, Secretary of Education; Colin Powell, Secretary of State; Condeleeza Rice,
National Security Advisor; Michael Powell, Federal Trade Commission Chairman;
and Alphonso Jackson, Secretary of Housing & Urban Development. Since Bush
received only 8%of the vote from African-Americans, these appointments cannot
be quidproquo for African-American electoral support but represent appointments
of the best person for the position. 6 Americans no longer live with white only and
The
Forbes 400, available at
Richest People in America:
12. The
http://www.forbes.com/richlist2003/rich400land.html (Sept. 18, 2003).
13. In the 2001-2002 academic year, African-Americans constituted 8% of the undergraduate
students at Harvard, 7% at Yale and Princeton. See Some Facts& Statistics about Yale University,
at www.yale.edu/oir/factsheet.html (Feb. 23, 2004); Degree Student Enrollment by Ethnicity: Fall
2002, athttp://vpf-web.harvard.edu/factbook/current-facts/enroll ethnicity_7.html (last updated Mar.
10, 2003).
14. See Number of Black Elected Officials in the United States, by State and Office, January
1999, at http://www.jointcenter.orgf)B/table/graphs/beo_99.pdf.
15. African-Americans constitute nearly 8.5% of the members of the lower house of Congress.
U.S. Census Bureau, Statistical Abstract of the United States: 2002, Members of Congress-Selected
available at
382
247
tbl
at
1983 2002
Characteristics
http://www.census.gov/prod/2003pubs/02statab/election.pdf(last visited Mar. 2, 2004). The number
reported is 39, but that includes District of Columbia and Virgin Islands delegates.
16. Marjorie Connelly, The Election: Who Voted A PortraitofAmerican Politics, 1976-2000,
N.Y TIMEs, Nov. 12, 2000, at D4.
UNIVERSITY OF TOLEDO LAW REVIEW
[Vol. 35
colored only signs etched above water fountains, waiting rooms, transportation
facilities, rest rooms, schools, hospitals, and cemeteries. It is at least thirty years
after their removal. Even in contexts where it is not against the law to use race to
consciously discriminate, the general American ethos makes it clear that it is at least
considered wrong or in bad taste to openly discriminate against blacks solely on the
basis of race. 7
Nevertheless, African-Americans still lag far behind non-Hispanic whites in
terms of political, economic, educational and social status, and health conditions.
For example, when adjusted for inflation, the per capita income of AfricanAmericans increased by 250% from 1967 to 2000. Yet, it was only 65% of that of
non-Hispanic white per capita income in 2000." According to the U.S. Census in
1966, 40.9% of the black population, 9 50.6% of children under the age of 18, and
55.1% of those over the age of 65 lived below the poverty line.2" In 2001, these
percentageswere down to 22.7%,2 30.2%, and 21.9%, respectively 22 Yet, fornonHispanic whites the figures were 7.8%,23 9.5%, and 8.1%,24 respectively
17 Professional baseball player John Rocker commented: "Imagine having to take the [number]
7 train to the ballpark, looking like you're [riding through] Beirut next to some kid with purple hair
next to some queer with AIDS right next to some dude who just got out ofjail for the fourth time right
next to some 20-year-old mom with four kids. It's depressing." Jeff Pearlman, At Full Blast, SPORTS
ILLUSTRATED, Dec. 27 1999, at 62. "The biggest thing I don't like about New York are the foreigners.
I'm not a very big fan of foreigners." Id. In the article, Rocker "calls an overweight black teammate
'a fat monkey' and states, "I'm not a racist or prejudiced person, but certain people bother me." Id.
at 64.
Jimmy "The Greek" Snyder says black athletes "have 'been bred' to be better athletes than whites.
This goes all the way to the Civil War, when ... the slave owner would breed his big black to his big
woman so that he would have a big black kid."' Scorecard:An Oddsmaker s Odd Views, SPORTS
ILLUSTRATED, Jan. 25, 1988, at 7
Golfer Fuzzy Zoeller, commenting on Tiger Woods after Tiger's Masters win (the winner of the
Masters chooses the menu for the Champion's Dinner the following year), "pat him [Woods] on the
back, and, say 'Congratulations, enjoy, and tell him not to serve fried chicken ... or collard greens or
whatever the hell they serve." Scorecard:The Ripple Effect, SPORTS ILLUSTRATED, Apr. 28, 1997 at
24.
18. U.S. DEP'T OF COMMERCE, U.S. CENSUS BUREAU HISTORICAL POVERTY TABLES: PEOPLE,
available atwww.census.gov/hhes/income/histinc/p0Ib.html (last visited Feb. 26, 2004) (for blacks)
and www.census.gov/hhes/income/histinc/pOla.html (last visited Feb. 26, 2004) (for whites).
19. U.S. DEP'T OF COMMERCE, U.S. CENSUS BuREAu HISTORICAL POVERTYTABLES, 2001 Table
2: People (Sept. 2002), availableat http://www.census.gov/hhes/poverty/histpov/hstpov02.html (last
visited Feb. 26, 2004).
20. U.S. DEP'T OF COMMERCE, U.S. CENSUS BUREAU HISTORICAL POVERTY TABLES, 2001 Table
3: People (Sept. 2002), availableat http://www.census.gov.hhes/poverty/histpov/hstpov03.html (last
visited Feb. 26, 2004) (for those under the age of 18 and over the age of 65).
21. U.S. DEP'T OF COMMERCE, U.S. CENSUS BUREAU HISTORICAL POVERTYTABLES, 2001 Table
2: Poverty Status of People by Family Relationship, Race, and Hispanic Origin: 1959 to 2001 (Sept.
2002), available at http://www.census.gov/hhes/poverty/histpov/hstpov02.htm (last visited Feb. 26,
2004).
22. U.S. DEP'T OF COMMERCE, U.S. CENSUS BUREAU HISTORICAL POVERTYTABLES, 2001 Table
3 (Sept. 2002), available at http://www.census.gov/hhes/poverty/histpov/hstpovO3.htmi (last visited
Feb. 26, 2004).
23. U.S. DEP'TOF COMMERCE, U.S. CENSUS BUREAU HISTORICALPOVERTYTABLES, 2001 Table
2: Poverty Status of People by Family Relationship, Race, and Hispanic Origin: 1959 to 2001 (Sept.
2002), available at http://www.census.gov/hhes/histpov/hstpov02.html (last visited Feb. 26, 2004).
24. U.S. DEP'T OF COMMERCE, U.S. CENSUS BUREAU HISTORICAL POVERTY TABLES, 2001 Table
Summer 2004]
REEXAMINA TION OF DESEGREGATION
The SAT scores of black children improved from 686 in the 1975-76 school year
to 857 in 2001-02.2' Despite this improvement, the gap between the average score
on the SAT of non-Hispanic whites and blacks only fell from 258 to 203.26 After
falling through the 1970s and 1980s,27 the disheartening aspect is that this racial gap
has actually increased over the past ten years.28
The percentage of blacks age 18-24 enrolled in higher education increased from
13% in 1967 to 31.3% in 2001.29 The college completion rate for blacks over the
age of 25 has increased from 4.5% in 1970 to 16.1% in 2000.30 But the percentage
of non-Hispanic whites enrolled in college increased over the same period from
26.9% to 39.3%,3 and the percentage over the age of 25 that had completed college
increased from 11.6% to 28.1%.32 In addition, African-Americans continue to earn
significantly less than their non-Hispanic white counterparts with the same levels
of educational attainment. For example, blacks who are high school graduates, have
a bachelors degree, or have a professional degree earn only 83.1%, 79.8%, and 73%
of their non-Hispanic white counterparts, respectively 33 In 1965, barely 1%of all
law students were black, and over one third of them were enrolled in the historically
black law schools. Barely 2% of all medical students were black, with 75% of them
3 (Sept. 2002) availableat http://www.census.gov/hhes/poverty/histpov/hstpovO3.html (last visited
Feb. 26, 2004).
25. BLACK AMERICANS: A STATISTICAL SOURCEBOOK 104 (Manthi Nguyen ed., 2003)
[hereinafter BLACK AMERICANS]. See also SAT Averages Rose for Almost All Racial/Ethnic Groups
Between 1991 and 2001, availableat http://www.collegeboard.com/press/senior01/htrnl/pdf/table9.pdf
(last visited Feb. 26, 2004) [hereinafter SAT Averages]; NAT'L CTR. FOR EDUC. STATISTICS 2002,
Table 133: Scholastic Assessment Test (SAT) Averages, by Race/Ethmcity 1986-87 to 2001-02,
availableat http://nces.ed.gov/programs/digest/d02/tables/dti33.asp (last visited Feb. 26, 2004).
26. BLACK AMERICANS, supra note 25, at 104 (1975-76 scores). See also SAT Averages, supra
note 25 (2001 scores); NAT'L CTR. FOREDUC. STATISTICS 2002, Table 133: Scholastic Assessment Test
(SAT) Averages, by Race/Ethnicity 1986-87 to 2001-02, supranote 25.
27. BLACK AMERICANS, supra note 25, at 104. In 1975-76, the gap between the average SAT
score of African-Americans and whites was 257, comparing the African-American score of 687 to the
average white score of 944. Id.
28. NAT'L CTR. FOR EDUC. STATISTICS 2002, Table 133: Scholastic Assessment Test (SAT)
Averages, by Race/Ethnicity 1986-87 to 2001-02, supra note 25. In the 1990-91 assessment year, the
gap was only 187 points (846 versus 1031); in the 1996-97 assessment year, the gap had increased to
195 points (857 versus 1052); in 1998-99, the gap was 199 (856 versus 1055); and in 2000-01, it was
201 (859 versus 1060). Id.
29. NAT'L CTR. FOR EDUC. STATISTICS 2002, Table 186: Enrollment Rates 18-24 Year Olds in
1967-2001, available at
Degree Granting Institutions by Sex, Race/Ethnicity
http://nces.ed.gov/programs/digest/d02/tables/dt1 86.asp (last visited Feb. 26, 2004).
30. BLACK AMERICANS, supra note 25, at 118 (1970 figures); U.S. CENSUS BUREAU CURRENT
POPULATION SURVEY, MARCH 2000, availableat www.census.gov/population/socdemo/race/black/ppl142/tab07.txt (Feb. 22, 2001) (2000 figures).
31. NAT'L CTR. FOR EDUC. STATISTICs 2002, Table 186: Enrollment Rates 18-24 Year Olds in
Degree Granting Institutions by Sex, Race/Ethnicity 1967-2001, supra note 29.
32. BLACK AMERICANS, supra note 25, at 118 (1970 figures); U.S. CENSUS BUREAU CURRENT
POPULATION SURVEY, MARCH 2000 (Feb. 22, 200 1), supra note 30.
33. 2002 STATISTICAL ABSTRACT, Table 211. Mean Earnings by Highest Degree Earned 1999,
availableat http://qrc.depaul.edu/ExcelFiles/StatisticalAbstract/Education/02S0211 .xls (last visited
Feb. 26, 2004). African-Americans who are high school graduates only, with bachelor's degree, and
with professional degree earn $20,991, $37 422, and $75,509, respectively. Their non-Hispanic white
counterparts earn $25,270, $46,894, and $103,450, respectively. Id.
UNIVERSITY OF TOLEDO LAW REVIEW
[Vol. 35
enrolled in either Howard University or Meharry Medical College.34 Figures from
2001 reveal that 5.3% of lawyers and judges, and 5.6% of physicians are black."
However, these percentages are still far short of the corresponding percentage of
African-Americans in the population.
The life expectancy of black males increased by over eight years from 1970 to
2000, and that of black females by nearly seven years.36 Yet, figures compiled in
2000 still indicate that black males live six-and-one-half years less than nonHispanic white males (68.3 and 74.8, respectively) and black females live five years
less than non-Hispanic white females (75.0 and 80.0, respectively).3, Finally in
2002, blacks constituted 43.9% of the 1,848,700 persons in state or federal prisons
and localjails.38 Nearly 13% of African-American men between the ages of 25 and
29 were incarcerated at midyear 2002, in contrast to only 1.6% of non-Hispanic
white men in the same age group.39
In brief, Americans today live in a society that has been fundamentally altered by
changes in society sparked by Brown. Many of the changes in race relations that
have occurred since 1954 can accurately be described as stunning. It is clear to
even the most obstinate observer that significant improvement in the social,
political, economic, educational, and health conditions of African-Americans can
be seen. Race is currently less of a factor in limiting the opportunities of blacks
than at any other time in this country's collective past. However, despite the
successes of so many individual African-Americans, blacks as a group continue to
lag far behind non-Hispanic whites in virtually all aggregate statistics related to
social welfare. America is torn between congratulating itself over the obvious
34. WILLIAM BOWEN & DERRICK BOK, THE SHAPE OF THE RIVER: LONG TERM CONSEQUENCES
OF CONSIDERING RACE IN COLLEGE AND UNIVERSITY ADMISSiONS 1-10 (1998).
35. BLACK AMERICANS, supra note 25, at 200.
36. Id. at 50 (indicating that the life expectancy of black males increased from 60.0 years to 68.2
and that the life expectancy of black females increased from 68.3 to 74.9 years over this period).
37 Arialdi M. Minino & Betty L. Smith, Deaths: PreliminaryDatafor2000, NAT'L VITAL STAT.
REP., Oct. 9, 2001, at 12.
38. According to the U.S. Department of Justice, the race breakdown instate and federal prisons
and local jails is as follows:
Total inmate population: 2,014,500
Black inmate population: 884,500 (43.9%)
White inmate population: 699,500 (34.7%)
PAIGE M. HARRISON & JENNIFER C. KARBERG, U.S. DEP'T OF JUSTICE, PRISON AND JAIL INMATES AT
MIDYEAR 2002, at 10 tbl. 13 (Apr. 2003).
39. Id, at tbl. 14. Statistics indicate that African-Americans have a 1 in 6 chance of going to
prison in their lifetime. BLACK AMERICANS, supra note 25, at 158. For every 100,000 people in the
United States, 2,489 blacks were locked up, compared with only 378 whites and 922 Hispanics.
Human Rights Watch, Press Backgrounder"Race and Incarcerationin the United States Table 1,
availableat www.hrw.org/backgrounder/usa/race/ (Feb. 22, 2002). But if the focus is on males, almost
8%of black males between the ages of 18 and 64 are incarcerated in comparison to only 1.1% of white
men and 2.7% ofHispanic men. Id. at tbl. 3. In twelve states over 10% of black males are behind bars.
The twelve states are Colorado (10.7%), Iowa (11%), Kansas (11%), Kentucky (10.3%), Oklahoma
(12.2%), Oregon (10.1%), Pennsylvania (10.5%), South Dakota (13.9%), Texas (11%), West Virginia
(15.2%), Wisconsin (13%), and Wyoming (14%). Id.
Summer 2004]
REEXAMINATION OF DESEGREGATION
progress on race relations over the past fifty years and being demoralized over the
lack of success.
II. THE SUPREME COURT'S RATIONALE FOR STRIKING DOWN
SEGREGATION STATUTES IN BROWN V BOARD OFEDUCATION
AND SOME OF ITS EFFECTS ON PUBLIC EDUCATION
The Supreme Court decision in Brown was part of a coordinated legal strategy
to attack segregation in public schools by the NAACP and, later, the NAACP Legal
Defense and Educational Fund, Inc.4" Between 1938 and 1950, the Supreme Court
addressed four cases dealing with segregation in graduate and professional
schools." Despite the doctrine of "separate but equal" announced in Plessy v.
Ferguson,42 prior to the NAACP's campaign, African-Americans experienced
numerous disadvantages in seeking higher education opportunities.43 Black public
colleges were unequal to white public colleges in numbers, facilities, faculty
training, and breadth and depth of curriculum. 4 In the graduate and professional
40. In 1939, the NAACP established the NAACP Legal Defense and Educational Fund, Inc.,
known later as the "LDF" or the "Inc. Fund." After 1939, the LDF became responsible for the legal
work while the NAACP concentrated its efforts on lobbying efforts. MARK V TUSHNET, MAKING
CivuL RIGHTS LAW: THURGOOD MARSHALL AND THE SUPREME COURT, 1936-1961, at 27 (1994). For
an excellent discussion of the history of the litigation leading up to Brown v. Board of Education, see
RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V BOARD OF EDUCATION AND BLACK
AMERICA'S STRUGGLE FOR EQUALITY 261 (Vantage Books 1977) (1976).
41. Missouri exrel. Gaines v. Canada, 305 U.S. 337 (1938); Sipuel v. Bd. of Regents, 332 U.S.
631 (1948); Sweatt v. Painter, 339 U.S. 629 (1950); McLaurm v. Oklahoma State Regents, 339 U.S.
637(1950). The Supreme Court cases addressing segregation in graduate and professional schools was
actually preceded by Pearson v. Murray, 182 A. 590 (Md. 1936). Donald Murray, an AfricanAmerican graduate of Amherst College, applied to the University of Maryland Law School, but was
denied admission because of his race. Id. at 590-91. While Maryland did not provide any legal
training for African-Americans, it appropriated $10,000 to fund an out-of-state scholarship program.
Id. at 593. The Maryland Court of Appeals ruled that the program was insufficient to provide Murray
with equal educational opportunities. Id. at 594.
42. 163 U.S. 537 (1896).
43. In the 1930s, a white student desiring to attend college had five times as many colleges to
choose from as his African-American counterpart. Those colleges also offered the white student with
a richer and more diverse curriculum.
DIANE RAVITCH, THE TROUBLED CRUSADE:
AMERICAN
EDUCATION 1945-1980, at 121 (1983). In 1956, the Supreme Court confirmed that Brown I applied
to colleges and universities by affirming the lower court's judgment to that effect. Board of Trustees
v. Frasier, 350 U.S. 979 (1956) (per curiam). Professor Kujovich, in an insightful article, discusses
the history of the systematic underfunding of African-American institutions of higher education. See
generally Gil Kujovich, Equal Opportunity in HigherEducationand the Black Public College: The
Era of Separate But Equal, 72 MINN. L. REV 29 (1987).
44. In Brown I, the Court mentioned that its decisions in Sweatt and McLaurn also rested on the
recognition of intangibles. Brown v. Bd. of Educ. (Brown 1), 347 U.S. 483, 493-94 (1954). Yet in
Sweatt, the Court also focused on the objectively measurable differences between the University of
Texas Law School and the Texas Law School for Negroes. Sweatt, 339 U.S. at 632-34. At the time
Sweatt applied, no law school existed in Texas that admitted African-Amencans. Id. at 631. While
Sweatt's appeal was pending, however, the Texas legislature appropriated enough money to establish
a law school for African-Americans. Id. at 632. In comparing the newly-created Texas Law School
of Negroes with the University of Texas Law School, the Court noted that the University ofTexas Law
School had a student body of 850 students, a library with over 65,000 volumes, and a faculty ofsixteen
UNIVERSITY OF TOLEDO LAW REVIEW
[Vol. 35
school cases, the Court did not need to consider whether segregation per se had a
negative impact on African-Americans in order to grant the black plaintiffs their
requested relief. The denial of equal educational opportunities was unquestionable.
The Court's analysis in Brown, however, required it to address the previously
unarticulated harm associated with segregation per se. Brown started with an
assumption not present in the graduate and professional school cases-that the
physical facilities and other tangible factors ofthe public schools attended by black
and white students in Topeka, Kansas were equal. 45 Given the objectively
measurable equality of segregation per se in this context, the Court was forced to
identify the harm resulting from segregation for the first time.46 In one of the most
quoted phrases from Brown 1,the Court noted, "[t]o separate [African-American
youth] from others of similar age and qualifications solely because of their race
generates a feeling of inferiority as to their status in the community that may affect
their hearts and minds in a way unlikely ever to be undone.,
47
The Court went on
to quote approvingly from the district court in Kansas:
Segregation of white and colored children m public schools has a detrimental effect
upon the colored children ... for the policy of separating the races is usually interpreted
as denoting the inferiority of the negro group. A sense of inferiority affects the
motivation of a child to learn. Segregation with the sanction of law, therefore, has a
tendency to [retard] the educational and mental development of negro children ......
The Court never abandoned this formulation of the harm of segregation.49 In
reading the Court's rationale for invalidating segregation statutes for public schools
full-time and three part-lime professors. Sweatt, 339 U.S. at 632. Also available at the University of
Texas Law School "were a law review, moot court facilities ... and Order of the Coif affiliation." Id.
at 632-33. In contrast, by the time the case reached the Supreme Court, the law school for
African-Americans had only 23 students, a faculty of five full-time professors, and a library of
approximately 16,500 volumes. Id. at 633.
45. Brown I, 347 U.S. at 492.
46. Id.
47 Id. at 494.
48. Id. (quoting a finding of the Kansas district court that initially ruled against the plaintiffs).
49 See Green v. County Sch. Bd., 391 U.S. 430, 437-38 (1968) (placing upon school boards an
obligation to affirmatively mix the races in public schools and justify'ing this imposition by stating that
the constitutional rights of African-American school children noted in Brown Iand Brown I required
it). See also Milliken v. Bradley, 433 U.S. 267, 288 (1977) (approving educational remedies to combat
the effects of the operation ofdejuresegregated schools). Injustifying these remedies the Court stated
that "[c]hildren who have been ... educationally and culturally set apart from the larger community will
inevitably acquire habits of speech, conduct, and attitudes reflecting their cultural isolation.... Pupil
assignment alone does not automatically remedy the impact of previous, unlawful educational
isolation; the consequences linger .....
Id.at 287 Thus, the Court's reasoning rests upon the belief
that racial isolation had damaged and would continue to damage only African-American children. See
also Freeman v. Pitts, 503 U.S. 467,492 (1992) (agreeing that a school system that was under federal
court supervision for formerly operating a dual school system could terminate federal court control
over an aspect of the system, such as student assignment, while maintaining control over other aspects,
such as teacher and administrator assignment). In discussing the harm which school desegregation
remedies were directed at eradicating, the majority opinion in Freeman, written by Justice Kennedy,
quoted the above passages from Brown to point to the psychological harm segregation inflicted on
black children. Id. at 485-86.
Summer 2004]
REEXAMINATION OF DESEGREGATION
with the cold reflection that results from the lapse of fifty years, what stands out is
that the Court's justification for striking down segregation did not reject the
fundamental belief in the inferiority of black people. Segregation in public schools
was struck down because of, and not in spite of, the fact that blacks were not the
equals of whites. What made Brown such an historic break from the dominant
racial attitudes about African-Americans at that time was that the inferiority was
attributed not to ontological distinctions between blacks and whites, but to
differences in their respective social environments. This change in the cause of the
"less than" nature of blacks was optimistic and hopeful when compared to the
previous dominant beliefs about blacks. If the problem with blacks was their
deficient social environment, it was not necessary to abandon all hope about the
darker-hued race; it was possible to improve black people by improving their social
environment.
The Supreme Court's decision in Brown set the wheels of desegregation in
motion. More was involved in desegregation thanjust the physical mixing of black
and white school children in public schools. The desegregation of public schools
also involved the integration of staff, teachers, and administrators. Desegregation,
however, proved to have negative consequences for the largest professional class
of African-Americans at the time, public educators. In the 1950s, half of all black
professionals were public school teachers."0 Many scholars have pointed to the
disproportionately high price that African-American educators paid for
desegregation.51 For example, Samuel Ethridge reported that between 1954 and
50. Sabrina Hope King, The Limited Presence of African-American Teachers, 63 REv EDUC.
REs. 115, 124 (1993) (citing M. Foster, Recruiting Teachers of Color: Problems, Programs and
Possibilities (Oct. 1989) (presented at the Fall Conference of the Far West Holmes Group, Reno,
Nev.)).
51. See, e.g., ALviS V ADAIR, DESEGREGATION: THE ILLUSION OF BLACK PROGRESS (1984);
HARRELL R. RODGERS JR. & CHARLES S. BULLOCK, III, LAWAND SOCIAL CHANGE: CIVIL RIGHTS LAWS
AND THEIR CONSEQUENCES 94-97 (1972); David G. Carter, Second-GenerationSchool Integration
ProblemsforBlacks, 13 J. BLACK STUD. 175, 179-83 (1982). See alsoDerrick Bell, NeitherSeparate
Schools Nor Mixed Schools: The Chronicle of the SacrificedBlack Schoolchildren, in AND WE ARE
NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE 102, 109 n.3 (1987) (citing amicus curiae brief
for the National Educational Association in United States v. Georgia,445 F.2d 303 (5th Cir. 1971)
(No. 30-338), for empirical data on burden borne by black teachers, administrators, and students due
to school integration); JAMES E. BLACKWELL, THE BLACK COMMUNITY: DIVERSITY AND UNITY 158-60
(2d ed. 1985); HAROLD CRUSE, PLURAL BUT EQUAL. A CRITICAL STUDY OF BLACKS AND MINORITIES
AND AMERICA'S PLURAL SOCIETY 22 (1987).
Not all courts were oblivious to this situation. The Fifth Circuit, for example, in Singleton v.
Jackson Mun. SeparateSch. Dist., 419 F.2d 1211 (5th Cir. 1970), cert. denied,396 U.S. 1032 (1970),
specified criteria to use in the event it was necessary to reduce the number of principals, teachers,
teachers aides or other professional staff employed by a school district. The Fifth Circuit stated that
any dismissal or demotions must be based upon objective and reasonable nondiscriminatory standards:
In addition if there is any such dismissal or demotion, no staff vacancy may be filled through
recruitment of a person of a race, color, or national origin different from that of the individual
dismissed or demoted, until each displaced staff member who is qualified has had an opportunity
to fill the vacancy and has failed to accept an offer to do so.
Id. at 1218.
UNIVERSITY OF TOLEDO LAW REVIEW
[Vol. 35
1972 over 31,000 black teachers lost their jobs in the Southern and border states.52
In addition, testimony before the United States Senate revealed that 96%of AfricanAmerican principals lost their jobs in North Carolina, 90% in Kentucky and
Arkansas, 80% in Alabama, 78% in Virginia, and 77% in South Carolina and
Tennessee." Given the Court's pronouncement that segregation affected the hearts
and minds of black children in ways unlikely ever to be undone, black adults who
had obviously attended segregated schools-including educators-must also suffer
from psychological damage. Thus, closing black schools, terminating AfricanAmerican teachers, and demoting black principals could be perceived as reasonable
sacrifices
to increase the quality of education for all students, especially the black
54
ones.
The Supreme Court's opinion in Brown also ignited an educational reform
movement directed at assisting African-American school children. Educational
reforms incorporated the same assumptions about African-Americans that formed
the basis of the Supreme Court's opinion. Accepting the Court's view as gospel,
educational reforms for African-Americans were dominated by a "cultural
deprivation paradigm."" The popular notion of "cultural deprivation" viewed black
children as imprisoned in a deviant culture and a deficit social environment.56 One
review of the studies through the mid-1960s, for example, concerning the need to
make changes to address the educational problems of disadvantaged and minority
children found that 82% of these studies stressed the need to make changes in the
children. Only 8%of the studies saw a need to make changes in the schools." As
a result, the premises and structures of public education remained intact and were
not seriously questioned."
52. Samuel B. Ethridge, Impact of the 1954 Brown vs. Topeka Board of Education Decision on
Black Educators, 30 NEGRO EDUC. REV. 213, 223-24 (1979) (noting that two years later, this number
had increased to nearly 40,000); John Smith & Bette M. Smith, Desegregation in the South and the
Demise of the Black Educator 20 J. SOC. & BEHAV. ScI. 33, 34 (1974).
53. Displacement and Present Status of Black School Principals in DesegregatedSchool
Districts: Hearings Before the U.S. Senate Select Comm. on Equal Educational Opportunity, 92d
Cong. (1971) (statement of Benjamin Epstein). In addition, Epstein also testified that 50% of AfricanAmerican principals lost theirjobs in Georgia and 30% did so in Maryland. Id.
54. In some ways what happened to African-American schools was a repeat of the events of 100
years earlier when the Massachusetts state legislature attempted to desegregate the Boston public
schools. Because whites would not send their children to black teachers, black school teachers and
assistants were fired. For a discussion of the desegregation of the Boston schools in the 1850s, see
generally Arthur 0. White, The Black Leadership Class and Education in Antebellum Boston, 42 J.
NEGRO EDUC. 504 (1973).
55. See CARL BEREITER& SIEGFRIED ENGELMANN, TEACHING DISADVANTAGED CHILDREN INTHE
PRESCHOOL 24-25 (1966).
56. James M. Jones, The Concept of Racism and its ChangingReality, in IMPACTS OF RACiSM
ON WHiTE AMEIicANs 27, 40-41 (Benjamin P Bowser & Raymond G. Hunt eds., 1981).
57 Doxey A. Wilkerson, Prevailingand Needed Emphases in Research on the Education of
DisadvantagedChildren and Youth, in THE DISADVANTAGED
CHILD: ISSUES AND INNOVATIONS
275,
278 (Joe L. Frost & Glenn R. Hawkes eds., 1966).
58. James A. Banks, Race, Ethnicity and Schooling in the United States: Past, Present and
Future,in MULTICULTURAL EDUCATION INWESTERN SOCIETIES 31 (James A. Banks & James Lynch
eds., 1986).
Summer 20041
REEXAMINATION OF DESEGREGATION
Professor Banks, a leading advocate for multicultural education, has pointed out
that the two major goals of educators during this movement were to raise the selfconcepts of ethnic minority youths and to increase their racial pride. 9 Educators
assumed that students with healthy self-concepts were better learners and thus
would fare better in school.6" However, the movement embodied the notion that the
self-concept of black children would improve by a portrayal of them as essentially
colored whites. For example, the changes made by commercial textbook publishers
were not substantive, but biological. Dick and Jane retained all of their usual white
middle-class social and behavioral traits, but were given black and brown faces. 6'
Traditional instructional programs underwent revision to recognize previously
neglected contributions of individual ethnic minorities. To be acknowledged,
however, the individuals had to satisfy the mainstream norms of what was
considered acceptable. Thus, attempts to include African-Americans in the
curricular material resulted in ethnic content grafted onto the white instruction
typified by the standard educational programs.62 Professor Banks also noted that
even the later focus on multicultural education did not eliminate the AngloAmerican cultural bias of the traditional educational program.63
The establishment of a number of cultural enrichment programs followed these
changes in the curriculum. Trips to concerts, art galleries, scientific laboratories,
and museums became part of the educational system. The purpose of these
programs was to expose minority children to the artifacts and traditions of
America's mainstream. No corresponding programs exposed white children to
important social institutions in the African-American community " The underlying
message of this one-way exposure was that racial minorities would improve by
simply dropping their deviant cultural traits and adopting the requisite mainstream
personality traits and characteristics.6 5
59. Id. at 46.
60. See DONALD H. BOUMA
& JAMES HOFFMAN, THE DYNAMICS OF SCHOOL INTEGRATION:
PROBLEMS AND APPROACHES IN A NORTHERN CITY 72-81 (1968).
61. Geneva Gay, Achieving EducationalEquality Through CurriculumDesegregation,72 PI
DELTA KAPPAN 56, 59 (1990) (citing Mildred Dickeman, Teaching CulturalPluralism,in TEACHING
ETHNIC STUDIES: CONCEPTS AND STRATEGIES 17, 19 (James A. Banks ed., 1973)).
62. Larry Cuban, Ethnic Contentand "White" Instruction,in TEACHING ETHNIC STUDIES, supra
note 61, at 103, 104.
63. See JAMES A. BANKS, MULTIETHNIC EDUCATION: THEORYAND PRACTICE 12 (2d ed. 1988).
See also Grimes v Sobol, 832 F Supp. 704 (S.D.N.Y. 1993), affd, 37 F.3d 857 (2d Cir. 1994). In
this case, African-American plaintiffs brought an action alleging that the New York City public schools
used a culturally biased curriculum in violation of the equal protection clause and the implementing
regulations of Title VI of the 1964 Civil Rights Act. The plaintiffs argued that the cumculum
systematically distorted and demeaned the role of African-Americans and excluded the existence,
contributions, and participation of blacks in various aspects of the world, Amencan culture, sciences,
history, arts, and other areas of human endeavor. The District Court rejected the claim, concluding that
the plaintiffs failed to establish that the curriculum was adopted because of, and not in spite of, its
harmful effects on African-American school children.
64. See CARL A. GRANT & CHRISTINE E. SLEETER, AFTER THE SCHOOL BELL RINGS 130-33
(1986). White students attending desegregated schools are seldom exposed to the histories and
cultures of their minority classmates.
65. Mildred Dickeman, Teaching CulturalPluralism,in TEACHING ETHNIC STUDIES, supranote
61, at 5, 19.
UNIVERSITY OF TOLEDO LAW REVIEW
[Vol. 35
III. FOUR DIFFERENT DISCOURSES FOR COMPREHENDING RACIAL
PHENOMENA AND DISCUSSING RACIAL ISSUES
Chief Justice Earl Warren's opinion for the Court in Brown based the decision
to strike down segregation statutes on the belief that segregation caused
psychological damage to African-Americans. Despite his clear statement of the
harm created by segregation, for the past fifty years scholars and judges have
interpreted Brown in many different ways. Some have argued that Brown should
be understood as an anti-subordination opinion. Recently, Justice Ginsburg, in her
dissenting opinion in Gratz, adopted this point of view She argued that in
implementing the Equal Protection Clause, "government decision makers may
properly distinguish between policies of exclusion and inclusion."66 Thus,
"[a]ctions designed to burden groups [like African-Americans] long denied full
citizenship stature are not sensibly ranked with measures taken to hasten the day
when entrenched discrimination and its after effects have been extirpated."67
Ginsburg goes on to quote Professor Stephen Carter'
[T]o say that two centuries of struggle for the most basic of civil rights have been
mostly about freedom from racial categorization rather than freedom from racial
oppression is to trivialize the lives and deaths of those who have suffered under racism.
To pretend ... that the issue presented m [Regents of Univ. of Cal. v.1 Bakke, was the
same as the issue in Brown [v. Board of Education], is to pretend that history never
happened and that the present doesn't exist.
At the other end of the spectrum it has been argued that Brown is nothing more than
an opinion that declares the simple proposition that it is wrong for a government to
classify and treat individuals as members ofracial and ethnic groups. "Distinctions
between citizens solely because of their ancestry are by their very nature odious to
a free people.,, 68 As a result, what was wrong with segregation statutes was not that
they produced psychological harms for African-Americans, but that government
was wrong to classify and treat people differently based on an involuntary
66. Gratz v. Bollinger, 539 U.S. 244, 301 (2003) (Ginsburg, J., dissenting). See also Wygant v.
Jackson Bd. of Educ., 476 U.S. 267, 316 (1986) (Stevens, J., dissenting) ("There is, however, a critical
difference between a decision to exclude a member of a minority race because of his or her skin color
and a decision to include more members of the minority ... for that reason. The exclusionary decision
rests on the false premise that differences in race, or in the color of a person's skin, reflect real
differences that are relevant to a person's right to share in the blessings of a free society. The inclusion
... inevitably tends to dispel that illusion whereas their exclusion could only tend to foster it. The
inclusionary decision is consistent with the principle that all men are created equal; the exclusionary
decision is at war with that principle. One decision accords with the Equal Protection Clause of the
Fourteenth Amendment; the other does not.").
67 Gratz, 539 U.S. at 301 (quoting Stephen Carter, When Victims Happen ToBeBlack, 97YALE
L.J. 420, 433-34 (1988)).
68. Hirabayashi v. United States, 320 U.S. 81, 100 (1943).
Clarence Thomas made this
interpretation of Brown in his concurring opinion in Miller v. Johnson, 515 U.S. 70, 114 (1995)
(Thomas, J., concumng). See generallyLINO GRAGLIA, DISASTER BY DECREE: THE SUPREME COuRT
DECISIONS ON RACE AND THE SCHOOLS (1976).
Summer 2004]
REEXAMINATION OFDESEGREGATION
characteristic like race.69 Another interpretation of Brown is suggested by Professor
Derrick Bell. Bell has long argued that the Court's opinion in Brown wasjustified
by a utilitarian analysis. He sees Brown as justified within a long line ofjudicial
and political actions that have helped African-Americans only when their interest
converges with that of the white elite.7" Striking down segregation statutes was
principally justified as an aspect of America's Cold War efforts.71
The Post-Desegregation Awareness does not attempt to determine the one correct
meaning or interpretation of an important racial phenomenon, like Brown v. Board
of Education. Rather, it anticipates that there are always a limited number of valid
discourses in which racial phenomena will be conceptualized and understood. The
reason this is the case is because the comprehension of any particular racial
phenomenon is never done in a vacuum, but always done against a sub silentio
background of a much larger set of ideas about race, ethnicity, and the role of
African-Americans in society- and there are always a limited number of different
sub silentto backgrounds. As mentioned earlier, these sub silentio background sets
of ideas could be called perspectives or points of view This article, however, will
refer interchangeably to these larger diverse sets of ideas as "discourses," "patterns
of understanding," "systems of meaning," or "cognitive frameworks."
These discourses are based upon certain foundational beliefs which must first be
accepted as valid. Once the foundational belief is accepted, the discourse derived
from it structures and limits the perception of a given racial phenomenon. While
the given discourse does not provide a definitive solution for a given racial issue,
it does dictate the type of arguments that can be advanced in support of or in
opposition to a solution to a given racial conflict.
What the Post-Desegregation Awareness tries to do is to reveal how these
systems of meaning that we use over and over to comprehend racial phenomena and
discuss racial issues structures and limits the perception of such phenomena and the
discussion of such issues. When those discourses are so revealed and understood,
then we come to know that many of our disagreements about the meaning of racial
phenomena, the type of arguments that are considered persuasive in discussing
various racial issues and resolutions to racial conflicts are actually embedded in
69. Justice Clarence Thomas noted in his concurring opinion in Missouri v. Jenkins that the
Court's opinion in Brown v. Board of Education has been misread. 515 U.S. 70, 118-19 (1995)
(Thomas, J., concurring). According to Thomas, Brown Idid not need to rely upon any psychological
or social-science research in order to announce the simple, yet fundamental, truth that the government
cannot discriminate among its citizens on the basis of race. Segregation was not unconstitutional
because it might have caused psychological feelings of inferiority. Psychological injury or benefit is
irrelevant to the harm generated by the state's treatment of individuals as members or racial or ethnic
groups. Id.
70. Professor Derrick Bell has long suggested that when examining the desegregation of
American society, one should not overlook the position of America in an international context. See,
e.g., Derrick Bell, Brown v Board of Education and the Interest-ConvergenceDilemma, 93 HARv. L.
REV 518 (1980), reprintedin DERRICK BELL, SHADES OF BROWN: NEW PERSPECTIVES ON SCHOOL
DESEGREGATION 90-106 (1980). Professor Mary Dudziak expanded on this theme in a Stanford Law
Review article she wrote. See Mary Dudziak, Desegregationas a Cold War Imperative, 41 STAN. L.
REv 61(1988).
71. See MARY DurDziAK, COLD WAR CIVIL RIOHTS (2000) (discussing the impact ofthe Cold War
on America's civil rights agenda).
UNIVERSITY OF TOLEDO LAWREVIEW
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fundamentally different assumptions which generate alternative systems of meaning
for comprehending a given racial phenomena. It is in this way that, as Justice
O'Connor noted in her opinion in Grutter,diversity in the classroom can produce
discussions that are more enlightening and interesting.
This section will discuss four different discourses which can generate the
alternative and contradictory interpretations of the Supreme Court's opinion in
Brown discussed above: Traditional Americanism, African-American Centralism,
Colorblind Individualism, and American Collectivism. Each of these cognitive
frameworks has its own fundamental view of the social world, its own view of the
role of government, and its own particular conception of moral and ethical behavior.
Thus, each framework will yield a different understanding of a given racial
phenomenon and will provide different types of arguments for or against a
particular solution to a given racial conflict.
These four different discourses do not just provide an interpretation of a racial
issue like the Supreme Court's opinion in Brown and the school desegregation it
generated, but they provide alternative interpretations of various racial phenomena
of all kinds including the racial gaps noted earlier in measures of political,
economic, educational, and health conditions. To limit the presentation to four
discourses is, in a sense, arbitrary But to reveal the understanding of racial
phenomena produced by the Post-Desegregation Awareness (that there are always
a limited number of competing and different ways in which to interpret any given
racial phenomena) and make it intelligible, some arbitrary limitation must be
imposed. In addition, the discussion of these four cognitive frameworks is intended
to capture a general sense of the ways in which Americans constantly think about
racial issues. Thus, each of these discourses should be familiar to most Americans.
There is nothing intrinsic or inevitable about these four systems of meaning. But
it must be stressed that Traditional Americanism for a long time dominated
discussions about racial issues for the purpose of determining the legal rights (or
lack thereof) of blacks through out much of American history Over the past thirty
years, however, the Supreme Court's equal protection jurisprudence has come to
increasingly embrace Colorblind Individualism.
A.
TraditionalAmericanism
Historically the dominant beliefs in American society have not been the
progressive individualist attitudes that began to emerge in the 1950s and 1960s.
The roots of America's traditional beliefs, "Traditional Americanism," are driven
deep in the history of American society These beliefs took for granted the conquest
and extermination of the indigenous peoples found here, the exclusion and
subordination of women, the repression of the immigrant European working class,
and the closeting of homosexuals. These beliefs were developed primarily from the
perspective of able-bodied Protestant heterosexual white males of Anglo-Saxon
descent with a degree of financial resources. When this traditional thinking was
applied to people of African descent and their place in American society blacks
were considered to be members of a substandard racial group. Blacks were
classified first as non-citizens and then as second-class citizens for more than 300
years.
Summer 2004]
REEXAMINA TION OF DESEGREGATION
This pattern of understanding is not always conscious of the race of non-Hispanic
whites as a group or as individuals. Thus, non-Hispanic whites can be
conceptualized as individuals without regard to their race or as a superior
racial/ethnic group. But, the amalgamation of their characteristics, traits, actions,
behaviors, attitudes, opinions, or beliefs constitute the explicit or implicit norm
from which deviations that require an explanation are recognized. The salient
feature and abiding aspect of this cognitive framework when perceiving racial
phenomena involving African-Americans, however, is its perception of blacks as
less than the applicable norm.
The cause of the inferiority of blacks has had different explanations throughout
history Prior to the Court's opinion in Brown, there was a long history of legal,
open and conscious discrimination against African-Americans in this country The
dominant American beliefs about blacks around which the legal interpretation of
their rights (or lack thereof) had historically been construed was the belief in their
ontological inferiority From the American colonial period until 1954, blacks were
legally viewed as substandard beings. It was this view that legally rationalized
oppression of blacks in the form of slavery and later segregation.72 One
manifestation of this belief before Brown was the development and maintenance of
legally separate and unequal public educational systems.
Up until the twentieth century, this discourse based the inferiority of blacks on
either the divine will of God, the effects of having developed in the inhospitable
climate of Africa, or defective biology When the substandard nature of blacks was
attributable to causes that were essentially immutable to human engineering, it was
difficult to find good reasons for integrating society or education. During the 1930s
and onward, the argument that the cause of the inferiority of blacks could be traced
to black cultural and social environmental factors became the dominant explanation
for the inadequacies of blacks. African-Americans were suffering from both an
impoverished social environment and a degenerate culture that retarded their
intellectual and psychological development. As these twin factors became accepted
as the cause of the inferiority of blacks, there was reason to be optimistic that
African-Americans could be elevated through changing their environment. The
cure for the disease that afflicted them was to enrich their social environment by
increasing their contact with whites and assisting them in shedding a degenerate
culture. As is obvious now, this is the view of blacks that was accepted by the
Supreme Court in its opinion in Brown v. Boardof Education.
Just because blacks are regarded as substandard beings does not mean that they
should be treated with contempt or animosity While the belief that the "less than"
72. See, e.g., Dred Scott v. Sandford, 60 U.S. 393,407 (1857). In concluding that the slave and
would-be free man, Dred Scott, could not sue in federal court to obtain his freedom, Chief Justice
Taney stated: "[Blacks] had for more than a century before [the Declaration of Independence] been
regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in
social or political relations; and so far inferior, that they had no rights which the white man was boupd
to respect; .... Id., Plessy v. Ferguson, 163 U.S. 537, 552 (1896). In upholding a statute that
segregated railroad passengers, the Court stated: "[i]f one race be inferior to the other socially, the
constitution of the United States cannot put them on the same plane." Id. Segregation policies and
practices instituted by government were normally understood as reasonable regulations that recognized
the second-rate nature of blacks.
UNIVERSITY OF TOLEDO LAW REVIEW
[Vol. 35
nature of blacks justifies oppressive structures such as slavery and segregation, at
other times itjustifies paternalistic attitudes and behaviors toward blacks aimed at
helping them overcome their deficiencies. As Rudyard Kipling described in a poem
written in 1899, The White Man s Burden, the superior races have an obligation to
help the inferior races to the extent possible.73 Thus, it is appropriate to confine
inferior groups to their accustomed position in the social order, but it is also
appropriate to treat blacks with paternalistic compassion and provide them with the
assistance and guidance they are presumed to lack.
Within this cognitive framework, when government performs its assigned
functions, it should take into account the built-in limitations of blacks. There is a
long history of governmental action based on that premise. Until the Civil War,
governments in states in which slavery was permitted incorporated the institution
into their governing legal codes. State militias and the federal government troops
were used to suppress slave insurrections. Runaway slaves were returned to their
masters when caught by peace officers. As slaves, blacks were not only denied their
personal liberty but were also denied even basic legal rights. They could not sue
nor be sued; testify in court; buy, sell, lease or rent property; enter into contracts;
exercise the franchise; or hold political office.
After the Civil War three Amendments, the Thirteenth, Fourteenth, and Fifteenth
(the "Reconstruction Amendments"), were added to the Constitution. The
Reconstruction Amendments not only abolished slavery but granted blacks certain
civil and political rights. Yet, not long after the Reconstruction Amendments were
ratified, government policies and practices were employed to disenfranchise and
segregate blacks. Due to the constitutional protections which prevented
discrimination based on race, color or previous condition of servitude, schemes
employed to disenfranchise African-Americans were required to be thinly veiled in
racially neutral terms. One important method was the poll tax. Since blacks left
slavery as landless, penniless peasants, few of them could afford the payment of a
tax as a prerequisite to being allowed to vote. Mandating literacy requirements also
proved to be an effective means in which to disenfranchise black male voters.
Voting registrars responsible for certifying qualified voters would refuse to certify
black males. For purposes of determining constitutional violations, their refusal
was not based on race, but the racially neutral criteria that the black person seeking
to register failed to demonstrate an ability to read or understand the political
process. Nevertheless, excluding blacks from the political process was viewed as
elevating the electorate and thus providing for better political decisions.
While the Reconstruction Amendments were viewed as granting civil and
political equality to blacks, they were viewed as non-applicable to social rights.
Social rights were distinguishable from civil and political rights. Where civil and
political rights were asserted against government, social rights were asserted against
fellow citizens. Thus, denying a black person the right to sit on ajury involved an
infringement on his civil right. But governmental laws requiring segregation on
railway cars, omnibuses, stagecoaches, steamboats, waiting rooms, restrooms,
lecture halls, theaters, and schools involved social rights. The justification for
73. See Rudyard Kipling, The White Man's Burden, in RUDYARD KIPLING'S VERSE: INCLUSIVE
EDITION 1885-1926, at 373-74 (1931).
Summer 2004]
REEXAMINA TION OF DESEGREGATION
social segregation was based upon a realization that even if under the
Reconstruction Amendments blacks were entitled to civil and political equality, that
did not require social equality As the Court stated in Plessy v. Ferguson,"[i]f one
race be inferior to the other socially, the constitution of the United States cannot put
them on the same plane."74 Thus, segregation policies and practices instituted by
government were normally understood as reasonable regulations that recognized the
second-rate nature of blacks.
B.
African-American Centralism
During the long struggle against racial oppression, African-Americans and those
whites and others sympathetic to their cause created a counter discourse to that of
Traditional Americanism. The Africans who came to America were members of a
hundred different ethnic groups from a thousand different villages. In the American
melting pot, these diverse people were melded into one people, African-Americans.
Against the background of more than 380 years of racial domination, the
descendants of the soil of Africa formulated a counter system of meaning, "AfricanAmerican Centralism," to Traditional Americanism. This pattern of understanding
provided an alternative explanation of the role and condition of blacks in American
society
African-American Centralism sees the social world in terms of one major
purpose, goal, and objective: the liberation of black people from racial domination.
Rather than viewing African-Americans as inferior, this counter discourse sees
African-Americans as oppressed. The liberation sought is not abstract. It is
liberation from domination in the material, spiritual, and psychological conditions
of the lives of black people. This system of meaning views racial or ethnic groups
as having ontological primacy Thus, racial or ethnic groups have a life of their
own. These groups are not limited to current racial or ethnic group members in
being. Rather, these groups include all of those nameless and faceless ancestors
from the past and the unnamed and unknown progeny of the future. The current
members of a given racial or ethnic group occupy the center stage in the human
drama, but they are obligated to the past and obliged to the future. The benefits and
the obligations of the grandparents are passed on to the parents, who in turn pass
them on to the children.
Individuals are not viewed as discrete, distinct, autonomous, or living a separate
isolated existence, but as members of their respective racial or ethnic communities.
As a result, within this discourse, liberation of individual blacks is irrelevant. Final
victory over racial oppression can only occur when the African-American
community is liberated from the clutches of racial oppression. Even though
individual African-Americans may obtain material, spiritual, or psychological
success, their success does not obscure the oppression of the African-American
community
Conversely, though individual non-Hispanic whites might be
disadvantaged by a lack of money, education, intelligence, or social prestige, asia
group non-Hispanic whites are viewed as possessing undue advantages derived from
the privilege of their racial membership. These advantages exist regardless of a
74.
163 U.S. 537, 552 (1896).
1
UNIVERSITY OF TOLEDO LA W REVIEW
[Vol. 35
given non-Hispanic white individual's failure to recognize such benefits or, if
recognized, the non-Hispanic white person's sincere desire to disassociate him or
herself from such benefits.
As implied by the discussion of Justice Ginsburg's dissent in Gratz, anyone,
regardless of their race or ethnicity, can perceive racial phenomena within AfricanAmerican Centralism. But this system of meaning ascribes special moral
obligations to those who are black. Regardless of personal predilections, every
black individual is viewed as always linked to the struggle against racial oppression.
Thus, the success of black intellectuals, black athletes, black entrepreneurs, black
politicians, black movie stars, black professionals or black administrators is viewed
as the success of the black community Conversely, their failures and the failures
of other African-Americans, including black criminals, the poor academic
performance of black students, and the inadequate job productivity of black
employees are viewed as the failures of the African-American community As a
result, every black person, regardless of religious creed, social, or economic status,
level of education, gender, region of the country from which they come, sexual
orientation or associational or political affiliations, is under a never ceasing
obligation to accord him or herself consistent with the best interest of the black
community Blacks also have a responsibility to fight for the liberation of the
African-American community This responsibility, however, is not a function of
merely assisting someone with black skin. It is triggered only when it is necessary
to aid in the struggle against one of the multitudinous forms of racial oppression.
A black person who contributes to the political campaign of a black politician
should do so because the success of the politician furthers the struggle for the
liberation of the black community. If the black politician, however, consistently
takes positions antithetical to the liberation of the black community, then other
blacks should work for his or her defeat. A black person might have a moral
obligation to patronize a black business establishment, even if the prices are higher
than at a comparable non-black business establishment. Circulating money in the
black community strengths the community But if the black business discriminates
against black customers and does not employ black individuals, then the obligation
would be to avoid patronizing that business establishment.
Liberating the black community from racial subordination probably requires
sustained and costly governmental action. In addition, governments at all levels
have participated in the oppression of black people. Thus, one of the functions of
government should be to right the historical wrongs inflicted upon AfricanAmericans. Designing and implementing policies and procedures that help
dismantle the continued oppression of the African-American community would be
consistent with this function.
C.
ColorblindIndividualism
, American culture has always had a strong belief in the sacredness of individual
self-determination.75 The essence of this pattern of understanding has been
75. For most purposes, this system of meaning reflects the traditional practice of liberal
justification. David Boaz's book, LIBERTARIANISM: A PRIMER (1997), is a good introduction to many
Summer 2004]
REEXAMINA TION OF DESEGREGATION
articulated by many thinkers with many variations. Generally speaking, this system
of meaning was not applied to people of African descendant until the 1960s.
"Colorblind Individualism" is adequately summarized by Reverend Martin Luther
be judged by the color of their skin, but by the
King Jr.'s dream that people
7 6 "not
content of their character."
The primary objective of this pattern of understanding is the advancement of
individual self-determination. Colorblind Individualism views the social world as
a collection of "Knowing Individuals." Knowing Individuals are viewed as
autonomous, self-directed, and free-willed people who know what they want in life
and are capable of pursuing their self-determined goals and objectives." They are
capable of obtaining a self-reflective position separate from all of their beliefs,
aims, and attachments.7 From this position, Knowing Individuals can assess and
revise their beliefs, aims, and attachments.7 9 This capacity for self-reflection not
only means that the attitudes of Knowing Individuals are products of selfrealization, but that their objectives are self-formulated and their attachments in life
are self-determined. Because Knowing Individuals are capable of self-reflection,
it also follows that there is a split in their personality While there is a manifest self
present to the outside world, Knowing Individuals also possess a hidden, deep, and
essential self. This part of the self is prior to all the manifest characteristics of the
Knowing Individual, including race, ethnicity, gender, sexual orientation, and socioeconomic class."0 This part of the self is the "real," "true" or "subject" self. It is
the source of the motivations and drives that propel the individual to express
opinions, hold beliefs, pursue actions, and generate attachments.
This system of meaning is built upon the ontological presupposition that the true
self originates, within each person, as a separate, unique, and distinct entity Under
this pattern of understanding any given person should seek to uncover his/her true
self, decipher its predilections, separate it from that which might obscure or alienate
it, and then structure the remaining aspects of life so as to be consistent with its
of the concepts that are presented in the system of ideas contained within the system ofideas of Secular
Individualism. Pierre Schlag provides a recent critique of the practice of liberal justifications that
reveals the common conceptual structures of a number of disparate liberal thinkers like John Rawls,
Ronald Dworkin, Frank Michelman and Bruce Ackerman. See generally Pierre Schlag, The Empty
Circles ofLiberalJustification,96 MICH. L. REV 1 (1997) (arguing that these diverse liberal thinkers
actually employ a similar structure of justifications for their versions of liberal values).
76. Martin Luther King, Jr., I Have a Dream (Aug. 28, 1963), in A TESTAMENT OF HOPE: THE
ESSENTIAL WRiTINGS OF MARTIN LUTHER KING, JR. 217 219 (James Melvin Washington ed., 1986)
("I have a dream my four little children will one day live in a nation where they will not be judged by
the color of their skin but by the content of their character.").
77
ROBERT N. BELLAH ET AL., HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN
AMERICAN LIFE 143 (Perennial Library 1986) (1985).
78. See, e.g., Pierre Schlag, Normative and Nowhere to Go, 43 STAN. L. REv. 167, 181 (1990);
See generally, Seyla Benhabib, Critical Theory and Postmodernism: On the Interplay of Ethics,
Aesthetics, and Utopia in CriticalTheory, 11 CARDozoL.REv 1435(1990). One can see this concept
of the individual as what is produced when we look at the individual behind John Rawls' veil of
ignorance. JOHN RAWLS, POLITICAL LIBERALISM 26 (1993).
79
Michael J. Sandel, Religious Liberty--Freedom of Conscience orFreedom ofChoice, 1989
UTAHL. REV 597 598.
80. See BELLAHETAL., supranote
LIMITS OF JUSTICE I- II (1982).
77, at 76. See also MICHAEL J. SANDEL, LIBERALISM ANDTHE
-1
UNIVERSITY OF TOLEDO LAW REVIEW
[Vol. 35
prescriptions."' The only constraint placed on these individual choices is that each
Knowing Individual exercise self-restraint over his or her inclinations that would,
if satisfied, directly interfere or create a substantial risk of interference with others'
ability to pursue their self-determined goals and objectives.
The need to foster the self-determination of Knowing Individuals is the
foundation of the moral and ethical beliefs of Colorblind Individualism. Knowing
Individuals have the right to pursue any lifestyle they choose, so long as it respects
the right of others to do the same. Thus, the choices that Knowing Individuals make
are constrained by the obligation not to interfere with the ability of their fellow
Knowing Individuals to do the same. Murder, rape, assault, battery, robbery, and
deception are wrong because they interfere with the victims' ability to pursue their
self-determined objectives.
Once the respective relations to the material world have been determined,
Knowing Individuals will find it beneficial to interact with one another to advance
their own self-determined desires. The baker may find it helpful to provide bread
to the cobbler in exchange for the cobbler providing shoes for the baker's family
These voluntary interactions in furtherance of Knowing Individuals' selfdetermined interest create mutual obligations between contracting parties. Knowing
Individuals must perform the duties required by their voluntary agreement with
others. Thus violating voluntarily entered into agreements is also immoral.
According to this discourse, society and government come into existence as a
result of the free willed, self-determined choices of Knowing Individuals. Knowing
Individuals voluntarily give up their isolation and join society because it is the best
way to advance the pursuit of their self-determined goals and objectives. The
benefits derived by Knowing Individuals from joining society are the pursuit of
their goals and objectives without undue interference by others, and the security and
firm establishment of the rights to enjoy and use their accumulated property These
benefits assure for each person a sphere which is immune from interference by
others. In order to maximize these benefits, all Knowing Individuals must accept
burdens. These burdens require that each Knowing Individual exercise restraint
over their inclinations that, if satisfied, would directly interfere or create a
substantial risk of interfering with the ability of others to pursue their goals and
objectives.
The benefits derived from, and the burdens imposed by, joining society provide
the explanation for the primary roles and purposes of government. Government
should have a limited purpose and character. The principal functions of government
flow from its obligation to help ensure a society where people enjoy the liberty to
pursue their self-determined goals and objectives without undue interference by
others. Government should also provide, through universal and impersonal laws,
the means to resolve disputes that arise among Knowing Individuals in pursuit of
their self-determined goals and objectives. But, beyond ensuring that Knowing
Individuals do not unjustly interfere with the rights of self-determination of other
Knowing Individuals, government should be neutral with regard to competing
conceptions of a good life. It is generally inconsistent with the role of government
81. HUBERT L. DREYFUS & PAUL RABINOW, MICHEL FOUCAULT: BEYOND STRUCTURALISM AND
HERMENEUTICS 245 (2d ed. 1983).
Summer 2004]
REEXAMINATION OF DESEGREGATION
for it to formulate a certain morality for citizens or to direct society along a certain
path in order to advance a given vision of the good society Each Knowing
Individual should be left to make the decision regarding what a good life is for him
or herself subject to the constraint of respecting the rights of others to do the same.
Thus, there are very few circumstances where government should sacrifice the
interest of Knowing Individuals for the common good. Such a compelled sacrifice
is normally inconsistent with the limited nature of government.
Recent Supreme Court opinions resolving the rights of individuals based on racial
or ethnic group membership reflect this pattern of understanding. Much of the
Supreme Court's explanation of the harm of government use of racial classifications
contained in the controlling opinions of cases like Regents of the University of
Californiav. Bakke, 2 Wygant v. Jackson Boardof Education,3 City of Richmond
v. JA.Croson Co.," Miller v. Johnson," AdarandConstructors,Inc. v. Pena,16 and
to a large extent the decisions in both Grutterand Gratz, rest upon the conception
of the social world as a collection of Knowing Individuals.
D. American Collectivism
The fourth and final cognitive framework conceptualizes the social world as
populated by one group, Americans. As Justice Scalia put it, "we are just one race
here. It is American. ' ' 7 Americans, regardless of race, color, creed, national origin,
gender, sexual orientation, condition of mental or physical disability, wealth, social
status, education, or region of the country are united into one great people. The
motto is accurately captured in the phrase "E Pluribus Unum"-out of many one.
For "American Collectivism," the maintenance of the nation is the paramount
concern. Beyond that, the one other goal, objective, and concern is the
advancement of the best interest of the American collective.
Moral and ethical beliefs within this discourse are a function of the solicitude
about advancing the best interest of the American collective. Within this system of
meaning, being an American carries with it an obligation to protect the vital interest
of the country America, love it or leave it! Thus, the individual may be called
upon to sacrifice his or her personal interest for the benefit of the collective. For
example, during times of prolonged military conflict individuals may be subjected
to compulsory military service if not enough enlistments can be obtained through
voluntary measures. Despite objections that many individuals may have about their
tax dollars being used to fund the military, provide transfer payments to the elderly
or the poor, provide funds for the operations of national parks, or provide financial
assistance to foreign countries, because of the advantages to the collective, these
objections are outweighed by the benefits to the collective interest that such funding
provides.
82.
83.
84.
85.
86.
438
476
488
515
515
U.S.
U.S.
U.S.
U.S.
U.S.
87
Id. at 239 (Scalia, J., concurring).
265 (1978).
267 (1986).
469 (1989).
900 (1995).
200 (1995).
UNIVERSITY OF TOLEDO LAW REVIEW
[Vol. 35
The principal function for government is the advancement of the collective
interest. Government must "insure domestic tranquility, provide for the common
defense, promote the general welfare, and secure the blessings of liberty "s" In
advancing or protecting the common good, government should also regulate certain
personal liberties and economic activities for the benefit of the public good, ban
certain drugs and other products that are too dangerous for public consumption,
prohibit the performance of certain injurious practices to society and disseminate
useful information that will benefit Americans.
Since the focus ofthis cognitive framework is on the collective good, it discounts
the problems and sufferings of any particular racial or ethnic group. For example,
African-Americans have certainly suffered discrimination while in the United
States. But within this discourse a discussion about the discrimination against
blacks cannot be confined to harms inflicted on that group alone. While it is true
that blacks have been victims of discrimination, so have Native Americans and, to
a lesser extent, Latmos and Asian Americans. If, as Justice Powell wrote in his
opinion in Bakke, the facade of a monolithic white group is pierced, it becomes
obvious that some white ethnic groups were also exploited and victimized when
they came to America. These white ethnics had to struggle-and to some extent
struggle still-to overcome the prejudices not of a monolithic majority, but of a
majority composed of various minority groups.89 In addition, a discussion about
instituting ameliorative measures to attack the suffering of a particular racial or
ethnic group will not be limited to the beneficial impact on that particular group.
Rather, such beneficial impact must be balanced against the detriment inflicted on
the collective good by such measures.
E.
Conclusion
It is important to understand that these systems of meaning can and do structure
the thoughts of any individual, at any given place and at any given time. For
example, Jesse Jackson is reported to have said, "[t]here is nothing more painful for
me at this stage in my life than to walk down the street and hear footsteps and start
to think about robbery and then look around and see it's somebody white and feel
relieved."9 In making this statement, Jackson is viewing African-Americans in
terms of Traditional Americanism. Justice Ginsburg, in her dissenting opinion in
Gratz, firmly roots her view in terms of African-American Centralism's
fundamental desire to eradicate the continued oppression of minority groups. In
addition, the comprehension of racial phenomena by any one person is not limited
to just one of these discourses at a given time. The human mind is far more flexible
than that. Individuals can comprehend a given racial phenomenon in more than one
discourse. Thus, our minds are used to multiple comprehensions of racial
phenomena.
88. U.S. CONST. pmbl.
89. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 292 (1978).
90. See Paul Glastris & Jeannye Thornton, A New Civil Rights Frontier U.S. NEWS & WORLD
REP., Jan. 17, 1994, at 38.
Summer 2004]
REEXAMINATION OF DESEGREGATION
To provide a brief view into the use of these different cognitive frameworks for
comprehending racial phenomena, consider again the social statistics regarding the
current condition of the African-American community noted in section I' Those
statistics reveal that despite the success of many individual African-Americans, as
a group, blacks continue to lag far behind non-Hispanic whites in virtually every
important measure of social welfare. Traditional Americanism would comprehend
the continuing racial gap in the social statistics in terms of some inadequacy of
blacks. Thus, the failure of a disproportionate number of African-Americans to
earn a decent living, their poor performance in educational institutions, the
propensity of black males to be involved in the criminal justice system, and the
failure of blacks to be more cognizant of their health concerns are understood as
evidence of the continued existence of some defect in the being, biology, or culture
of African-Americans. Thus, those social statistics reinforce the belief that in some
relevant way blacks are inferior.
Within the conceptual boundaries of the cognitive framework of AfricanAmerican Centralism, the deficit conditions of blacks revealed by the socioeconomic statistics are understood as evidence of the continued oppressive aspect
of racial domination. The disproportionate numbers of blacks consigned to poverty,
the lack of educational opportunities, the disproportionate numbers of black males
incarcerated, and the poor health conditions of the black community are all
understood as the consequences and material manifestations of the continued racial
oppression of black people in American society
Colorblind Individualism would seek to minimize the focus on racial aspects of
a given phenomenon. People should be judged and understood as individuals and
not as members of involuntary racial or ethnic groups. Colorblind Individualism
would attribute as much to the differences in the socio-economic condition of
blacks and non-Hispanic whites as to many non-racial factors such as the
differences in age, family structure, region of the country education, and other
considerations as possible. Colorblind Individualism would interpret any racial
differences remaining as of minimal importance because the real concerns are
generally related to individuals, not to racial and ethnic groups. Group-based
statistics tell us nothing about the particular individual in a given situation being
dealt with at a given time.
For American Collectivism the concern is about the best interest of American
society The social statistics regarding the racial gap between African-Americans
and non-Hispanic whites would have to be placed in the context of what these gaps
mean for the collective American interests. The statistics, by themselves, do not
convey any important information about the collective interest.
IV
BRowNv BoARD OFEDUCATIONAS INTERPRETED WITHIN THE CONCEPTUAL
BOUNDARIES OF THE FOUR DIFFERENT COGNITIVE FRAMEWORKS
This section reviews the Court's school desegregationjurisprudence through each
of the four different discourses-Traditional Americanism, African-American
Centralism, Colorblind Individualism, and American Collectivism. As indicated
91.
See supra notes 18-39 and accompanying text.
UNIVERSITY OF TOLEDO LAW REVIEW
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before, these discourses only structure and limit the perception of a given racial
phenomenon and thus, structure and limit the type of arguments that are deemed
persuasive for resolving a given racial conflict. Arguments could be made that
would criticize Brown and the desegregation of American society it spawned. Since
America is celebrating, not lamenting, the Golden Anniversary of Brown v Board
of Education, this section will only present the arguments within each cognitive
framework that would find favor with the Supreme Court's decision to strike down
segregation statutes and later decisions compelling mandatory desegregation.
A.
TraditionalAmericanism
As indicated earlier, this interpretation is closest to the explanation that Chief
Justice Warren included in his opinion discussing the harm derived from
segregation. The only harm of segregation recognized by Chief Justice Warren's
opinion was the negative psychological impact on African-Americans. This
position was consistent with the historical "less than" thinking about AfricanAmericans that is the fundamental belief of this pattern of understanding. Thus,
striking down segregation statutes and the subsequent desegregation of public
schools is largely viewed in terms of the benefit that it provided for black school
children.
Within the conceptual boundaries of this discourse, black school children
suffered from being confined to a deficit social environment and being imprisoned
within a deviant culture. Striking down segregation statutes paved the way for
desegregated education in public schools. Desegregrated education improved the
social environment of black students by both bringing them into contact with more
non-Hispanic whites and reducing the time that they spent in deficient all black
social settings. Desegregrated education increased their exposure to more
intelligent and better behaved non-Hispanic white children and more qualified nonHispanic white teachers. Non-Hispanic white teachers and students who black
children came into contact with were able to function as role models and
demonstrate to some of the black children the appropriate attitudes and forms of
behavior they should emulate. Desegregrated education also helped some AfricanAmerican children repudiate a portion of their deficient and pathological culture
and its associated ideas. Some of the black children listened to how the white
children and teachers spoke and learned proper diction and the correct use of the
English language.
B.
African-American Centralism
In response to living with racial oppression, one aspect of this system of meaning
imposes an obligation on every black person to assist in the struggle to liberate
African-American people from oppression. While the black community suffered
disproportionately as a result of school desegregation, that suffering was redeemed
by the greater progress towards eradicating racial subordination that was made
possible by striking down segregation statutes and desegregrating public schools
and American society Thus, part of what justified the sacrifice of so many blacks
Summer 2004]
REEXAMINATION OF DESEGREGATION
during desegregation was the benefit derived by the black community through the
end of segregation.92
White southern legislators during the segregation period demonstrated that they
were not adverse to reducing educational expenditures for both black and white
students. Even so, they would go as far as possible in cutting the funds for the black
schools before trimming the budgets of the white schools.93 For example, in 1910,
South Carolina and Louisiana spent five times as much on the education of white
children as black children; in Florida and Mississippi the ratio was approximately
four to one; Alabama and Georgia three to one; two to one in Arkansas, Virginia,
and North Carolina; and 50% more was spent on the education of white children
compared to black in Maryland, Tennessee, and Texas.94 Disparities in per pupil
expenditures were reduced during the middle part of the twentieth century as
southern school systems faced the possibility of court-ordered integration, but the
disparities continued up to the Court's opinion in Brown. The district court that
addressed segregation in Topeka, Kansas concluded that the physical facilities and
other tangible factors between the white schools and the black schools were equal.95
However, in the three other state companion cases in Brown from Delaware,
Virginia, and South Carolina, the lower courts concluded that the money spent for
the education of the black students was significantly less than that spent on the
92.
See GARY ORFIELD ET AL., DISMANTLING DESEGREGATION: THE QUIET REVERSAL OFBROWN
v. BOARD OF EDUCATION 103-06 (1996).
93. John Hope Franklin, Jim Crow Goes to School: The Genesis of Legal Segregation in
Southern Schools, 58 S. ATLANTIC Q. 225, 234-35 (1959).
94. ROBERT A. MARGO, RACE AND SCHOOLING IN THE SOUTH, 1880-1950: AN ECONOMIC
HISTORY 21-22 (1990). in 1917 the U.S. Bureau of Education published Negro Education:A Study
ofthe PrivateandHigherSchoolsfor ColoredPeople in the United States. This report was the most
comprehensive survey of segregated schools for its time. It reported that only 29% of what was spent
on the education of white students was spent on the education of black ones, and even less was spent
on the education of blacks in the South. Id. at 18-19. Federal funds allocated to the states for
vocational education and teacher training were also apportioned inequitably. While blacks constituted
21.4% of the population in the states with segregated schools, they only received 9.8% of the federal
dollars in the mid- 1930s. See DIANE RAVITCH, THE TROUBLED CRUSADE: AMERICAN EDUCATION
1945-1980, at 121 (1983). See also Paul Gewirtz, Choicein the Transition:School Desegregationand
the CorrectiveIdeal, 86 COLUM. L. REV 728, 776 (1986) (noting that money always follows white
students).
95. Brown v Bd. of Educ., 98 F Supp. 797, 798 (1951).
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white students. 96
[Vol. 35
Desegregrated education helped to make it harder to
systematically deprive African-Americans of adequate educational resources.97
Desegregrated education also assisted in the eradication of racial subordination
in a number of other ways. Desegregrated education allowed black children to
demonstrate to non-Hispanic whites that the negative stereotypes about all blacks,
and thus, the rationalizations of the continued oppression of blacks, were not true.
By learning with non-Hispanic white students, some black youth demonstrated their
intelligence, diligence, hard work, and leadership capabilities. From their exposure
to non-Hispanic white children, black children learned through their own personal
experience that supposedly enduring truths about presumed inferiority of blacks
were false. Desegregrated education helped to teach non-Hispanic whites that they
should treat blacks as individuals and not as members of an oppressed group. As
non-Hispanic white students came to know black students as individuals instead of
as members of different racial groups, they came to look at blacks less in terms of
race and more in terms of being individuals. Desegregrated education helped blacks
to overcome their oppression by increasing the sense of commonality that nonHispanic whites have with blacks. Desegregrated education helped non-Hispanic
whites to see that all people in America are part of a more important American
collective. Non-Hispanic whites learned that all Americans share a common core
culture which all Americans can celebrate. Racial differences are now understood
as less important because of the common interest of Americans as one people.
In order to succeed in mainstream employment and take advantage of business
opportunities in the mainstream, a black person must be able to operate effectively
in a white corporate world. Integrated education provided black children the ability
to understand non-Hispanic whites and feel comfortable in surroundings where nonHispanic whites are in the majority Thus, desegregrated public education assisted
96. In 1951, when the complaint mnBriggs v. Elliott, 98 F Supp. 529 (E.D.S.C. 1951), rev dsub
nom. Brown v. Bd. ofEduc. (Brown 1), 347 U.S. 483 (1954), was filed, Clarendon County spent $43
on the education of each black student as compared to $166 for each white student. I.A. NEWBY,
CHALLENGE TO THE COURT: SOCIAL SCIENTISTS AND THE DEFENsE OF SEGREGATION, 1954-1966, at
29 (1967). A three-judge federal district court had denied relief in this case but ordered the defendants
to take steps to equalize the public schools promptly and to report back in six months. Briggs, 98 F
Supp. at 537-38. Subsequently, the court found that the county was equalizing the schools "as rapidly
as was humanly possible." Briggs v. Elliott, 103 F Supp. 920, 922 (E.D.S.C. 1952), rev dsub nom.
Brown v. Bd. of Educ. (Brown ll),
349 U.S. 294 (1955).
In Davis v. County SchoolBoard,103 F Supp. 337 (E.D. Va.1952), rev dsub nom. Brown v. Bd.
of Educ. (Brown 1), 347 U.S. 483 (1954), a three-judge district court admitted the inadequacy of the
Negro school in Prince Edward County, Virginia. Id. at 340. The panel simply ordered the School
Board to "pursue with diligence and dispatch" the building program it had already commenced. Id.
at 340-3 1.
In Gebhart v. Belton, 91 A.2d 137 (Del. 1952), affd sub nom. Brown v. Bd. of Educ. (Brown 1),
347 U.S. 483 (1954), the Supreme Court of Delaware affirmed a decision by the Court of Chancery
that ordered the admission of Negro students to previously white-only schools. The court ordered the
desegregation remedy because the schools attended by blacks were not physically equal to those
attended by whites. Id. at 152. The Supreme Court of Delaware, however, implied that segregation
laws might be enforced once the school facilities were equalized. Id.
97. Peter M. Shane, School DesegregationRemedies andthe FairGovernance of Schools, 132
U. PA. L. REV 1041, 1093-95 (1984) (arguing that segregation harmed African-Americans because
they were powerless to partake of an educational program that was not hostile to them).
Summer 2004]
REEXAMINATION OFDESEGREGATION
many African-Americans in becoming successful in corporate America. This
helped to improve the economic situation for the black community
Non-Hispanic whites generally come from households that make more money and
possess greater wealth than black households. Thus, many African-Americans that
attended desegregrated schools were able to develop contacts and friendships with
more affluent students, which provided them with greater access to employment and
business opportunities and political and social contacts they could use during their
lives. In the long run, this also helped to increase their material and economic wellbeing, as well as political and social power, of the black community
C. Colorblind Individualism
There are two different aspects of school desegregation that are often conflated
into one, but which for purposes of this discourse need to be separated. A year after
the Court's opinion in Brown 1, the Court issued its implementing decision in
Brown 11.98 In Brown II, the Court required public schools to effectuate a transition
to a "racially nondiscriminatory school system."99 The Court noted that the full
implementation of the constitutional principles require varied solutions to local
school problems. The precise parameters of what was meant by a racially
nondiscriminatory school system was left originally to the discretion of school
authorities who had the primary responsibility for elucidating, assessing and solving
this problem. Chief Justice Warren went on to note that orders and decrees should
be entered to admit the plaintiffs to public schools on a racially nondiscriminatory
basis "with all deliberate speed."'0 0
The Court's decision in Brown Iand Brown 11 stopped short of directing school
districts to take account of race in order to produce integrated schools. In fact, on
remand, the three-judge federal district court panel in the South Carolina companion
case of Briggs v. Elliotti interpreted the Court's obligation placed on school
systems as follows:
[The Supreme Court] has not decided that the states must mix persons of different races
in the schools or must require them to attend schools or must deprive them of the right
of choosing the schools they attend. What it has decided, and all that it has decided,
is that a state may not deny to any person on account of race the nght to attend any
school that it mamtams.... The Constitution, in other words, does not require
integration. It merely forbids discrimination. It does not forbid such segregation as
occurs as the result of voluntary action. It merely forbids the use of governmental
power to enforce segregation. 12
98.
99.
349 U.S. 294 (1955) (Brown 11).
!d. at 300.
100. Id.
101.
102.
132 F Supp. 776 (E.D.S.C. 1955).
132 F Supp. at 777
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It was not until its 1968 decision in Green v. County School Board""l that the
Supreme Court rejected race-neutral measures if they did not produce substantial
integration. The Court placed an affirmative obligation on school officials to treat
students as members of racial and ethnic groups in order to pursue the remedies for
the prior operation of a dual school system. Thus, in Green the court compelled
public schools to take account of race and ethnicity in order to bring about
desegregrated public education.
According to this discourse, government is to protect the rights of Knowing
Individuals to pursue their self-determined goals and objectives. Government
should thus be neutral on the question of the type of goals and objectives
individuals should pursue or what constitutes a good society Government must
both respect the individuality of its citizens and mediate their conduct so as to allow
them to pursue their own desires and to prevent them from unjustly interfering with
the rights of their fellow persons to do likewise. By doing this, government allows
individuals to choose their own goals for themselves consistent with a similar
liberty for others." 4
Minors, however, are not Knowing Individuals. Minors lack experience,
cognitive development, maturity, andjudgment of adults. Children cannot critically
evaluate what is being presented to them. Children must go through a maturation
process during which they will develop perspectives that will indelibly affect their
view of themselves, their fellow citizens, and their world. Public schools are
institutions that acculturate America s youth. It is the one place where government
is supposed to be actively involved in the socialization of the next generation of
adult citizens. In the institution of public education, government exerts a
tremendous influence on learners in order to produce the kind of choosers that
possess the values necessary for the maintenance of a democratic society dedicated
to self-determination. But public education, like other governmental functions,
must maintain the neutrality that flows from the concept of society as a collection
of Knowing Individuals." 5 In order for government to maintain its neutrality with
respect to children, government should provide an educational environment where
minors can be acculturated to become constrained choosers.
Schools help students become choosers by assisting in their cognitive
development. Schools disseminate useful information and teach academic skills
such as reading, writing, and math. Schools foster the self-determination of
students by providing children the opportunity to equip themselves with the
vocational knowledge and skills necessary for them to become self-sufficient and
self-reliant adults. Schools seek to broaden the sensibilities of children, to kindle
their imagination, and to foster a spirit of free inquiry But schools have to teach
students to constrain their choices so that their fellow citizens are also afforded the
right to self-determination. Schools need to teach students to respect the rights of
103. 391 U.S. 430 (1968).
104. See, e.g., Sandel, supra note 79, at 598.
105. The Equal Protection Clause's acceptance of society as a collection of knowing individuals
provides an implicit model of public education. This implicit model recognizes the constraint of
governmental neutrality For a discussion of that implicit model of education see Kevin Brown, Do
African-Americans Need Immersion Schools? The Paradoxes Createdby Legal Conceptualization
of Race and PublicEducation, 78 IOWA L. REv 813, 858-67 (1993).
Summer 2004]
REEXAMINA TION OF DESEGREGATION
others, tolerance for political and religious diversity," 6 belief in racial equality," 7
and a commitment to faithfully discharge the duties imposed upon them by
citizenship.
The process of educating youth is not confined to books and curricular materials.
Schools also teach shared values through administrative rules and regulations
governing the operation of the schools, including policies that determine admission
to various schools in a given school district.108 Statutes that segregate individuals
based on involuntary characteristics like race and ethnicity are the antithesis of the
primary goal that animates this pattern of understanding.
Within this cognitive framework, striking down segregation statutes in Brown v.
Board ofEducation was justified because segregation statutes violated respect for
individuality in three different ways. 9 First, public schools were not treating
students, teachers, and administrators as individuals but rather as members of
involuntary racial groups. Hence, individuals were being confined and segregated
not based upon individual characteristics, qualifications, or results of constrained
choice, but upon accidents of birth. In effect, the government was imprisoning
individuals within racial traditions and not providing protection to allow them to be
self-determining. Second, despite Chief Justice Warren's assertion in Brown that
the white and black schools in Topeka, Kansas were equal with regard to the
physical facilities and other tangible factors, students who happened to be white
106. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681 (1986) (stating that public schools
must inculcate habits and manners of civility which are "fundamental values necessary to the
maintenance of a democratic political system"). The Court noted that "[tjhese ... values of'habits and
manners of civility' essential to a democratic society must ... include tolerance of divergent political
and religious views, even when the views expressed may be unpopular." Id. Tinker v. Des Moines
Indep. Community Sch. Dist., 393 U.S. 503 (1969), can also be thought of as a situation where the
schools attempted to suppress nondisruptive political speech. As a result, the school officials sent the
message that one need not tolerate even nondisruptive unpopular political speech. The liberal
construction of the phrase "tolerance for political diversity" conflicts with the inculcation of certain
political values, such as patriotism, respect for formal authority, and the values enshrined in
democracy However, the phrase has a more narrow meaning. The narrow construction allows schools
to satisfy the goal of inculcating tolerance for political diversity by preventing schools from engaging
in "narrow political or partisan indoctrination." Board of Educ. v. Pico, 457 U.S. 853, 879 (1982).
107 Brown v. Bd. of Educ. (Brown 1), 347 U.S. 483, 494 (1954).
108. Mary H. Mitchell, Secularism in Public Education: The ConstitutionalIssues, 67 BOSTON
L. REv 603, 684 (1987). For example, rules prohibiting fighting on school premises attempt to
inculcate a belief that violence is not a legitimate means to resolve a dispute. Rules requiring all
students to attend the same classes and to start school at the same time attempt to produce patriotic
sentiment.
109. Justice Clarence Thomas noted in his concurring opinion in Missouri v. Jenkins, 515 U.S.
70, 118-19 (1995) (Thomas, J., concurring), that the Court's opinion in Brown v. Bd ofEduc. has been
misread. According to Thomas, Brown Idid not need to rely upon any psychological or social-science
research in order to announce the simple, yet fundamental, truth that the government cannot
discriminate among its citizens on the basis of race. Segregation was not unconstitutional because it
might have caused psychological feelings of inferiority. Psychological injury or benefit is irrelevant
to the harm generated by the state's treatment of individuals as members or racial or ethnic groups.
The studies cited in Brown I have received harsh criticism. See, e.g., Mark G. Yudof, School
Desegregation:Legal Realism, ReasonedElaboration,and Social Science Research in the Supreme
Court,LAW & CONTENt. PROBS., Autumn 1978, at 57, 70. See generally GRAGLIA, supra note 68, at
27-28.
UNIVERSITY OF TOLEDO LAW REVIEW
[Vol. 35
were provided with better equipped and better funded schools than students who
happened to be black. Finally, segregation was stigmatizing to those who happened
to be African-American because the government was conveying the message that
these individuals were not the equals of those who happen to be white. Afortiori,
government was also inappropriately praising those who happened to be white
because segregation implied that they were superior to those who happened to be
black. The dissemination of these twin messages was also a violation of the
constraint of governmental neutrality
Striking down a segregation statute obviously advances individual selfdetermination. But when government treats people as members of racial and ethnic
groups, even for such laudable purposes as promoting desegregrated education,
government is infringing upon individuality The only way such an infringement
of individuality could be justified is by creating more capacity for individual selfdetermination than what is lost by treating people as members of racial and ethnic
groups. In other words, the use by government of an involuntary trait to determine
which students, teachers, and administrators are assigned to which schools is
contrary to the limited role of government within this cognitive framework. This
system of meaning can only justify the use of racial classifications by government
to foster integrated education if it promotes individual self-determination more than
it deters it. As Justice Blackmun stated so well in Regents of California
v. Bakke,
''
"[i]n order to get beyond racism, we first must take account of race. io
Even though forced desegregation required government to treat people as
members of racial and ethnic groups, it still promoted individuality and selfdetermination more than it harmed it. There were many justifications within this
cognitive framework for using racial classifications to promote desegregrated
education among the youth."11 Many people judged others, especially those who
happen to be black, with reference to stereotypes attached to skin color. When
people's acts toward others are based upon stereotypes, they deny that person their
individuality and interfere with their ability to be self-determining. Under the right
conditions, desegregrated education could help the young to overcome racial
stereotyping of those who happen to be black. Desegregrated education exposes
children to the diversity of people who happen to share the same involuntary
characteristics. Students gain first-hand experience of the reality that the various
general rules and stereotypes attached to different racial and ethnic groups do not
apply to all individuals of that particular group. Children who happen to be red,
white, black, brown, or yellow come to realize that some people who happen to be
red, white, black, brown, or yellow will be intelligent, diligent, hard working, law
abiding, and honest, and others will not.
Desegregrated education also helps to further the conversion of racial and ethnic
affiliations into mere voluntary associations in a number of different ways. Some
Knowing Individuals who happen to be black, white, Asian, or Latino will choose
to celebrate their racial or ethnic heritage, making it a salient part of their individual
identity, or choose to associate primarily with others who share their racial or ethnic
110.
See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 407 (1978) (Blackmun, J.,
concurring).
11.
See, e.g., Gewirtz, supra note 94, at 728.
Summer 2004]
REEXAMINATION OF DESEGREGATION
backgrounds. Others, however, will find none of this appealing. Desegregrated
education allows students to see that members of their own racial or ethnic group
can choose to primarily associate with racial or ethnic group members or non-group
members. Thus, students who happen to be black see other black students choosing
either to associate primarily with other students of the same color or with students
who are not black. Students who happen to be white get to see other white students
choose to associate primarily with other white students as well as those who choose
to associate primarily with non-white students. This experience provides students
with an understanding that they have some control over whether they primarily
associate with members of their own racial or ethnic group.
Desegregrated student bodies provide students with a better opportunity to learn
tolerance for racial and ethnic differences. Those who choose to make their race
and ethnicity a significant part of their individuality need to be able to make such
choices without having their desires unduly infringed upon. Thus, desegregrated
education exposes students to people from different racial and ethnic backgrounds
who may choose to celebrate their racial or ethnic heritage or make their race or
ethnicity a salient part of their identity Through this exposure, all students can
learn to tolerate the choices of others, even if they do not agree with them.
D. American Collectivism
Like Traditional Americanism and African-American Centralism, this pattern of
understanding would view the striking down of statutes requiring segregated public
education in Brown and the use of racial classifications to foster integrated
education approved in Green v. New Kent County as differing only in degree, and
not in kind. All of these methods are intended to foster integrated education.
Universal and free public education provides many advantages for American
society Thomas Jefferson wrote "I know no safe depository of the ultimate powers
of the society but the people themselves; and if we think them not enlightened
enough to exercise their control with a wholesome discretion, the remedy is not to
take it from them, but to inform their discretion by education."" 2 John Adams,
James Madison, and others also made similar pleas for an expanded commitment
to learning as a safeguard for the republic."'
In a country with such widespread racial, ethnic, and religious diversity, it is
necessary to focus on generating and maintaining cultural cohesion. As Emile
Durkheim pointed out, "society can survive only if there exists among its members
a sufficient degree of homogeneity "" The concept of the melting pot is the
principal idea developed in the United States to pursue the creation of"E Pluribus
Unum." The melting pot ideology expresses the core belief that the cultural
distinctiveness of various racial, ethnic, and religious groups is to meld into an
American cultural soup. Thus, the cultures of all those who have arrived here
112.
(1987).
113.
114.
DAVID TYACK ET AL., LAW AND THE SHAPING OF PUBLIC EDUCATION,
Id.
EMILE DURKHEIM, EDUCATION AND SOCIOLOGY 70 (1956).
1785-1954, at
23
UNIVERSITY OF TOLEDO LAWREVIEW
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should lose some of their distinctiveness in the process of absorbing the American
national culture.
The development of the importance of public education for promoting social
cohesion in American society was a result of the tremendous immigration that
America experienced in the latter part of the nineteenth century and the early part
of the twentieth century As America moved into the latter part of the nineteenth
century, it experienced the industrial revolution. The rapid industrialization of
American urban areas created an economic need for labor of immigrating white
European ethnics. The character of American immigration changed drastically
around 1880. A principally Protestant nation with immigrants from northern and
western Europe began to receive large numbers of Catholic and Jewish immigrants,
as well as immigrants from southern and eastern Europe."'
In a country with such widespread ethnic and religious diversity, it was necessary
for the government to establish a social institution to ensure the proper acculturation
of the young. Schools became the celebrated arsenal of the moral crusade to
assimilate the children of immigrating cultural minorities. The expansion of the
common schools in the 19th and 20th centuries was, in part, a response to the need
for a certain degree of cultural homogeneity in the face of widespread ethnic and
religious diversity that resulted from new waves of immigration. American schools
had to socialize successive generations of immigrants with different customs,
languages, and cultural traditions to help formulate a sense of an American people.
This sense of cultural commonality also helps reduce the danger of conflict between
different racial, ethnic, and religious groups that has flared up so often in other
places in the world.
In public schools, a common language is taught. Students develop a sense of
nationhood by learning about U.S. history, observing patriotic holidays, and being
involved in patriotic rituals such as the pledge of allegiance and the Star Spangled
Banner Public schools provide a mechanism to ensure that the overwhelming
majority of children receive a uniform moral and social education regardless of their
family background. Inculcation of these values to the young is too important for the
American collective to leave to the happenstance of individual guardians and
parents.
Separating children along racial and ethnic lines usually means virtual separation
throughout much of their lives. The result is misunderstanding, friction, and racial
hatred. Children who attend integrated public education have experiences with
students from different racial and ethnic backgrounds than their own. By fostering
these types of interactions, the knowledge that people from different racial and
ethnic groups have about each other is increased. A greater sense of understanding
can reduce potentially destructive racial and ethnic tensions, which are a product
of fear and ignorance. Integrated education, therefore, furthers assimilation of all
115. Between 1900 and 1930 the Catholic population doubled to 24 million. See Michael J.
Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. 1, 49 (1996).
Between 1850 and 1900, the number of Catholics increased from 1.7 million to 12 million. The
number doubled again between 1900 and 1930. See id. The massive increase in the numbers of
Catholics was replicated by the number of Jews. Their population increased from 229,000 in 1887 to
over 4,228,000 forty years later. This represented an increase from 0.5% of the nation's population
to 3%. See id.
Summer 2004]
REEXAMINA TION OF DESEGREGATION
immigrant and minority groups, including African-Americans. Integrated education
reduces racial intolerance and prejudice. It also helps to break down barriers
between different racial and ethnic groups in American society Children can come
to learn to see the commonalities in diverse people and thereby help to appreciate
the fact that we are all part of one American people.
In addition to the above advantages of integrated education within this cognitive
framework, Professors Derrick Bell and Mary Dudziak have pointed to a version of
how attacking segregation advanced the best interests of American society They
have argued that the understanding of the Court's decision in Brown and the
subsequent desegregation of American society that it fostered should not be
separated from America's engagement in the Cold War." 6 With the end of World
War H1,
the importance of the status and condition of blacks became a major concern
for the country In fighting the Germans, America had fought a war against a
country whose national policy was based on the dogma of racial superiority with its
own racially segregated armed forces. Shortly after the end of World War II, the
United States also found itself engaged in a seemingly inevitable struggle against
communism. As American foreign policy came to view the matter, the world was
bipolar: Soviet Union and America. The Soviet Union was animated by a fanatic
faith that was antithetical117to our own and sought the ultimate elimination of any
effective opposition to
it.
Desegregation of American society was a part of the strategy to win the Cold
War The ability of the United States to advance democracy abroad was
compromised by internal racial policies and practices of segregation at home."' In
the late 1940s and early 1950s, America's Cold War rhetoric of commitment to
democracy, freedom, and equality stood in sharp contradiction to its
International
disenfranchisement and segregation of African-Americans.
perceptions of American democracy affected the nation's ability to maintain its
leadership, particularly among newly independent nations in Asia, Africa, and Latin
America." 9 Soviet propaganda focused the world's attention on America's internal
racial practices. Newspapers throughout the world carried stories about the
116. Professor Derrick Bell has long suggested that when examining the desegregation of
American society, one should not overlook the position of America inan international context. See
generally Bell, supra note 70, at 518. Professor Mary Dudziak expanded on this theme in a Stanford
Law Review article she wrote. See generallyDudziak, supra note 70, at 61.
117 In early 1950 President Truman instructed the National Security Council to perform a
fundamental reappraisal of the U.S. Cold War position. The document produced, NSC-68, was not
declassified until the 1970s. It had a formative influence on the way America waged the Cold War.
See MARTiN
MCCAULEY, RUSSIA, AMERICA & THE COLD WAR
1949-1991, at i5-16 (1998).
118. With the filing by the Truman Administration of its brief in the 1948 case of Shelley v.
Kraemer the federal government began to place in front of the United States Supreme Court the
damage done in the international arena by America's internal racial situation. 334 U.S. 1 (1948)
(determining that the enforcement ofracially restrictive covenants placed on real estate was state action
and therefore striking their enforcement as a violation of the Fourteenth Amendment). The brief stated
that "the United States has been embarrassed in the conduct of foreign relations by acts of
discrimination taking place inthis country." Brief of the United States as Amicus Curiae at 19, Shelley
v. Kraemer, 334 U.S. 1 (1948) (quoting letter from Ernest A. Gross, Legal Adviser to the Secretary of
State, to the Attorney General (Nov 4, 1947)).
119 See generally DUDZIAK, supra note 71 (discussing the impact of the Cold War on America's
civil rights agenda).
UNIVERSITY OF TOLEDO LAW REVIEW
[Vol. 35
discrimination faced by non-white visiting foreigners and black Americans. 2 The
Soviets made effective arguments about the exploitation inherent in the2 American
form of society by pointing to the racial failings of the United States.' '
The Justice Department of the Truman Administration joined the legal battle to
end segregation. In the 1948 case of Shelley v Kraemer,122 the federal government
filed a brief repudiating racially restrictive covenants. The Justice Department's
brief specifically pointed to the fact that "the United States has been embarrassed
in the conduct of foreign relations by acts of discrimination taking place in this
country "'23The Justice Department also filed a brief in Brown calling for an end
of segregation. Proof that the Court's opinion striking down segregation was
important in the Cold War is evidenced by the State Department's use of the
decision. An hour after the decision was handed down, the Voice of America was
broadcasting it to Eastern Europe. Newspapers in Africa also provided extensive
favorable coverage of the Court's decision.
CONCLUSION
This article has reexamined the Supreme Court's opinion in Brown v Boardof
Education and the desegregation of public schools that it spawned with an
awareness that public education has moved into a Post-Desegregation Era. As the
twenty-first century unfolds, racial and ethnic segregation have been increasing in
public education for the past fifteen years. The Post-Desegregation Awareness also
takes into account the lessons that have been learned about race, racial issues, and
racial conflicts over the past fifty years. When it comes to reexamining the
Supreme Court's opinion in Brown and the desegregation of public schools it
spawned with a Post-Desegregation Awareness, it must be acknowledged initially
that the opinion and the desegregation of public schools it brought about do not
provide only one objective meaning, but multiple meanings.
Fifty years of desegregation have revealed that the comprehension of any
particular racial phenomenon, such as the Brown opinion and the desegregation of
public schools it generated, is not done in isolation or as a representation of an
objective truth. Rather, racial phenomena are always comprehended against a sub
silentio background of a much larger set of ideas about race, ethnicity and the place
in American society for various minority groups. There are not as many different
sets of ideas used to comprehend a given racial phenomenon as there are individual
perceivers, but a limited number of sets of background ideas. These larger sets of
ideas structure and limit the perception of a given racial phenomenon and thus the
discussion of a given racial issue. These various sub silentio backgrounds could be
called diverse perspectives or points of view This article, however, referred to
120. Dudziak, supra note 70, at 62 (discussing the appearance of stories in foreign presses such
as the Fiji Times Herald, Ceylon Observer, Shanghai Ta Kung Pao, the Chinese Daily Tribune,
newspapers in India and the Soviet periodical Trud on American internal racial problems).
121.
Jd. at 80.
122. 334 U.S. 1 (1948) (determining that the enforcement of racially restrictive covenants placed
on real estate was state action and therefore striking their enforcement as a violation of the Fourteenth
Amendment).
123. Brief of the United States as Amicus Curiae at 19, Shelley v. Kraemer, 334 U.S. 1 (1948)
(quoting letter from Ernest A. Gross, Legal Adviser to the Secretary of State, to the Attorney General
(Nov. 4, 1947)).
Summer 2004]
REEXAMINATION OFDESEGREGATION
them as "discourses," "patterns of understanding," "systems of meaning," or
"cognitive frameworks." Thus, whatBrownand the desegregation of public schools
means when perceived with the Post-Desegregation Awareness depends upon the
discourse used to comprehend these developments.
This article presented four different interpretations of Brown and the
desegregation of public schools it generated within four different discourses:
Traditional Americanism, African-American Centralism, Colorblind Individualism,
and American Collectivism. These discourses are based upon certain foundational
beliefs which must first be accepted as valid. Once the foundational belief is
accepted, the discourse derived from it structures and limits the perception of a
given racial phenomenon. Each of these cognitive frameworks has its own
fundamental view of the social world, its own view of the role of government, and
its own particular conception of moral and ethical behavior. Thus, each framework
will yield a different understanding of a given racial phenomenon like the Court's
opinion in Brown and will provide different types of arguments for or against a
particular solution to a given racial conflict.
The Post-Desegregation Awareness does not attempt to determine the one correct
meaning or interpretation of an important racial phenomenon, like Brown or the
resulting desegregation of public schools. What the Post-Desegregation Awareness
tries to do is reveal how these limited number of discourses that we use over and
over to comprehend racial phenomena and discuss racial issues structures and
circumscribes the perception of such phenomena and the discussion of racial issues.
When they are so revealed and understood, then we come to know that many of our
disagreements about the meaning of racial phenomena, the type of arguments that
are considered persuasive in discussing various racial issues and resolution to racial
conflicts are actually embedded in fundamentally different assumptions which
generate alternative systems of meaning for comprehending a given racial
phenomenon. It is in this way that, as Justice O'Connor noted in her opinion in
Grutter diversity in the classroom can produce discussions that are more
enlightening and interesting.
The primary objective of this article-as thus the primary purpose of the
reexamination of Brown and the desegregation of public education it made possible
from the perspective of the Post-Desegregation Awareness-is to demonstrate that
the search for the one correct perception of any given racial issue is misguided from
the very beginning. Simply put, Americans conceive of racial and ethnic
phenomena in radically and fundamentally different ways. Thus, not only will there
not be one valid interpretation of Brown and the desegregation of American society
it helped to bring about, but this basic inability to develop one valid interpretation
exists for all racial phenomena. There can be no final end to the discussions about
racial issues in American society that does not take into account the existence of
multiple perspectives or points of view